In March, as news coverage narrowed to a single story, the housing barristers in my chambers held their monthly meeting. ‘Everything will close,’ one senior colleague predicted, ‘schools, courts …’ But nothing did. For a strange, vertiginous time, life continued as normal. The streets of London were busy, the museums full of people. I went to court, and listened to a judge order that by 16 March, ‘the claimant will decide whether disability is still contested and it shall write to the defendant …’ Would they? Would any solicitors still be in the office? ‘By 30 March, the parties will jointly instruct a consultant to report on the issue of disability status.’ They wouldn’t. I knew they wouldn’t. But, like everyone else, I said nothing.
On 9 March, England’s chief medical officer confirmed that ‘everybody with even a minor respiratory tract infection or a fever should be self-isolating for a period of seven days.’ I was in court that day watching a landlord’s representative demanding immediate possession against a tenant in her mid-forties who was in rent arrears by £2000. The barrister made a number of points, some good, some bad. He spoke for about twenty minutes. Then it was my turn. ‘The tenant has chronic obstructive pulmonary disease,’ I said, ‘and you want her to be street homeless, today, with all that’s going on?’
The judge signalled with a nod that he was ready to give his judgment. The claimant’s counsel and I looked down at our blue books, pens ready, waiting to record the judge’s decision: whether or not the tenant would be evicted, and his reasons for the judgment. If the reasons weren’t adequate, the losing party might appeal.
‘No,’ the judge said.
‘No?’ the landlord’s barrister responded.
‘No,’ the judge repeated.
It was the shortest judgment I’d ever had.
‘This is the worst public health crisis for a generation,’ the prime minister said on 12 March. ‘Many more families are going to lose loved ones before their time.’ ‘Emergency legislation is being drafted,’ the lord chief justice announced on 17 March, ‘which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings.’ The Bar Council argued that all jury trials should be stayed until after the crisis. ‘All those involved in court proceedings, be they barristers, witnesses, defendants, jurors or members of the public (let alone staff and judges), should not be expected to attend court while the rest of the country is very strongly urged to work from home.’ The lord chief justice agreed and, also on 17 March, adjourned all new crown court trials listed before the end of April that were likely to last more than three days. The guidance left it unclear whether lengthy civil hearings would still proceed.
The day before the lord chief justice’s announcement, I was preparing for a four-day hearing in the case of a council worker who was dismissed after his employer received contradictory information from the Home Office. I got a call from the council’s barrister. ‘Sorry to bother you,’ Mr Bowls said. ‘But my solicitor’s been playing up. She wants to know how we’re going to practise social isolation. She’s 68, you see.’ Bowls can’t be any younger. ‘It’s not the court, it’s the conference rooms …’ Each party sits in a designated room while they wait for the judge to begin. We were likely to spend all morning in these rooms, which are so small that two people are more than enough to fill them. ‘My sainted employer has only called nine witnesses, hasn’t he?’ Bowls sighed. ‘One of them’s already in self-isolation. And the others, well, they’re every bit as worried as the solicitor.’
My own witnesses were just as vulnerable, but I had clear instructions from the solicitor to resist any application for an adjournment. The case had already gone to mediation once, and the employer had refused to compromise.
‘Could you help me, chum?’ he said.
‘I don’t know,’ I said. ‘It seems to me the government wants us to keep our hearings going, come what may.’
‘You’re right, they’re buggers. But this case is a thousand pages. Seventeen witnesses, we’ll never get through it in four days.’
‘Then ask the judge,’ I said to him. ‘If she’s not keen on hearing it, nothing I can say will make it happen.’
A desperate tone entered his voice. ‘Come on, Mr Renton, you and me. We’ve fought the good fight and fairly. I mean, if you were the one asking me …’
I sighed. Mr Bowls was right, he’s always been a decent opponent. But my solicitor’s instructions were clear.
‘Look,’ he said, firmly, ‘I don’t like to do this. But I’ve had an awful cold these past few days.’ He coughed at me, just a shiver in his throat.
My resolve broke. ‘I’ll see what I can do,’ I said.
Stories were circulating on social media of tenants – including doctors and nurses – being threatened with eviction. The government put out a press release promising there would be no evictions, but in a draft of the Coronavirus Bill published on 19 March there was no mention of the matter. Meanwhile, new claims were being issued every day, new hearings entered in my diary. Legislation on evictions was urgently needed: the arrival of the virus had led to the dismissal of many people in part-time jobs, the cancellation of self-employed people’s contracts and the evaporation of work for zero-hours staff. But a stay of evictions wasn’t the only action needed. All these groups, and many others, were facing the prospect of falling immediately into debt. What’s really needed is a mechanism to write off the debts tenants are accruing, as a result of not just the Covid-19 lockdown but also the years of austerity that preceded it. The lockdown is putting enormous pressure on a system that was already in trouble.
I was preparing for a hearing in the case of Salma Dublin, who had lived in her flat for thirty years. It is a two-bedroom flat with damp on the walls and a boiler that has been out of action for 18 months; a sticker on its side says ‘Do not use’ (the absence of heating is one reason for the damp). Her health has been bad for the last four years. The introduction of the bedroom tax has resulted in a shortfall between the rent and her housing benefit of £120 a month. The principle behind what the government likes to call the ‘spare room subsidy’ is that if a flat has more rooms than the people who live in it can reasonably occupy, their benefits should be capped, to encourage them to move out. The legislation assumes they have somewhere else to move to. Dublin is a tenant of one of Britain’s largest housing associations. Her housing officer told her that if one of their tenants has any rent arrears at all they will refuse to agree to their moving out. She asked about the possibility of exchanging her flat for a smaller one and was told that scheme was closed to her. The solution was simple, according to her landlord: if she was evicted the council would house her. But councils invariably refuse to house people like her. The likeliest outcome in Dublin’s case is a lengthy period of street homelessness.
Dublin was asking the court to stay her eviction. The flat is in such a state of disrepair that most judges would grant an adjournment – which would at least keep her off the streets for a while longer. The compensation due to her for 18 months without heating might be around £4000 or £5000. If that were set against her arrears they would be reduced to a manageable level, perhaps to nothing. It was also to her advantage that the housing association was legally represented: I doubted whether its lawyers would want to be in court during the pandemic. But the only way of getting the hearing put off was to obtain the other side’s consent. The day before she was due in court, Dublin’s solicitor phoned the other side at 10 a.m., asking for an adjournment. They needed more time. She called again at 11 a.m., at 12 p.m., at 1 p.m. At 4:59 p.m. they called her back and agreed.
On 23 March, the lord chief justice announced that civil hearings requiring the physical presence of parties should take place only if a remote hearing was impossible. This didn’t do anything to clarify what was going to happen to the large number of tenants who turn up at court for possession hearings with no legal representation. They couldn’t possibly navigate an online hearing. Could an online system be established to mimic the duty solicitor scheme, which gives tenants, when they arrive at court, access to free representation? While all such practicalities were being considered, my practice mercifully juddered to a halt.
During these chaotic early days some people approached me for informal advice. One was a civil servant with an autoimmune deficiency, whose employer was refusing to allow her to work from home. I helped her draft a grievance letter and within minutes the employer conceded. Another was a tenant who was about to move house and was terrified he would end up paying rent on two properties. I suggested he write to the landlord and ask if the move could be brought forward. To the tenant’s surprise, the landlord agreed. Then there was a kindergarten teacher whose employer had closed the school to halt the spread of the virus only to be faced with outraged parents, many of them well-paid City workers. As bankers, they insisted, they were key workers, and hadn’t the government indicated that schools should be kept open for key workers? The staff were made to work in their pupils’ homes and, even worse, were sent to work in a different house each day, maximising their risk of infection. The teacher wanted to know whether she could refuse the new arrangement and not lose the money she’d earned. I advised her that the law protects the right to walk off a dangerous job without sanction, but that enforcing that right was tortuous.
On 23 March, Boris Johnson announced a lockdown. ‘Travelling to and from work’ was permitted, he said, ‘but only where this is absolutely necessary and cannot be done from home.’ Lawyers were immediately inundated with requests for clarification. Did he mean that the work itself had to be necessary, or the travel to it? A press release explained that travel to work is permitted where work ‘absolutely cannot’ be done from home. Then a tweet from the government said that it was the work that had to be necessary – go to work, but only if you are a key worker. Three days passed before a further clarification was made: people were allowed to leave their home ‘to travel for purposes of work … where it is not reasonably possible for that person to work … from the place where they are living’. I concluded that I didn’t have the resources to work from home. Solicitors were still sending me papers every day, hundreds, sometimes thousands, of pages per case.
The city had become a place occupied only by manual workers. Every man apart from me was wearing a yellow or orange hi-vis jacket. I cycled past a building site at King’s Cross, an office development – by no one’s definition was this ‘necessary’. The contractors were Kier and BAM (one of my clients sued them when it was revealed in 2008-9 that union activists were being blacklisted). Managers were everywhere, in beanies and suits, carrying clipboards. There was no attempt at social distancing. Workers stood inches apart as foremen delivered instructions. When workers like these fall ill, companies will not pay them contractual or even the statutory minimum sick pay of £95.85 a week, since they are deemed to be ‘self-employed’.
I was drafting a defence for Peter Ojo, a disabled man in his late fifties. His was another bedroom tax case. He tries to meet his rent by making up the shortfall with money from other benefits, and relies on food banks. He has kept his rent arrears under £2000 despite all sorts of difficulties (hospital visits, sheer poverty, a friend who took his cash while he was in hospital, promising to pay it to the landlord, but then disappeared). Despite this, the landlord, a large housing association, plans to repossess.
I was also advising a worker who believed that discretionary payments were being unfairly distributed in his department (his employer, a bank, had investigated and found that seven of the ten workers in his team agreed there was a pattern of white managers paying white workers more). Normal deadlines apply even under current conditions: a claim has to be issued within three months or it can’t be heard at all. It takes time to get the details of a case straight; we spent two hours on the phone before I was in a position to advise him. He told me that the bank was desperate to keep everyone at work. It knew, he said, that its employees should be working from home, but it didn’t have the software to make this possible. At least the workers in his office who fall ill will receive up to six months’ sick pay at full salary – how many other workers across the economy will get this?
An electrician called Darren got in touch with me. He’d been sacked the day before after posting a short video clip on Facebook showing twenty workers at the start of their shift on a building site, all crowded round a table. At the start of the clip you can see a door on which – for less than a second – the main contractor’s name is visible. Darren was told that by posting the film he had brought his employer’s name into disrepute. He is a skilled electrician and had worked for the company for more than a year. The day after his dismissal, the site was closed down – normal working conditions there were simply incompatible with government advice. I encouraged Darren to take the first steps towards issuing a claim for unfair dismissal by filling in an online ‘early conciliation’ form with ACAS. He wasn’t a member of a trade union; I urged him to join one immediately. Someone (ideally a union, but, if not, a solicitor) would have to write to his employer and insist on his immediate reinstatement.
One of the difficulties he faced was in claiming Universal Credit, as the government advises unemployed workers to do. The application process requires people to complete an online form to validate their identity. Darren logged on at 4 p.m. At that point, there were 44,000 applicants ahead of him in the queue. By the following morning there were 18,000. ‘As soon as I reach zero,’ he said, ‘I’ll call you.’ Hours passed. I spoke to a woman who works in a pub kitchen and had been given notice. She had asked her landlord for a rent holiday and been refused. She logged on to the Universal Credit website a day after Darren; by that time 138,047 people were in the queue.
One thing the current crisis shows is that employment and housing are closely connected. Early on, it became clear that millions of workers were employed on contracts their employers regarded as temporary. Employers were perfectly willing to dismiss these workers, in some cases even refusing them redundancy pay. Precarious workers are more likely to rent their homes. If they lose their jobs, especially at a time when it’s nearly impossible to find a new one, they won’t be able to pay their rent and will risk eviction, though it seems both unjust and unsafe for people to be made homeless at such a time.
The danger isn’t limited to renters. Millions of workers are midway through paying off their mortgages. Although the government has guaranteed to pay 80 per cent of the wages of furloughed staff, up to £2500 a month, and belatedly backed similar payments to the self-employed, it doesn’t seem likely that any money will be handed out to the latter before June. Ministers are well aware of the risk to the government if mortgage lenders start to repossess houses. As a result, the chancellor announced a three-month mortgage payment holiday, backed up by guidance from the Financial Conduct Authority saying that if lenders insist on requiring mortgage payments at existing rates they are likely to face regulatory action.
By contrast, government support for tenants has been partial and grudging. No minister has suggested that tenants should be granted rent holidays, or that any delay in paying rent during the lockdown should be ignored when payments are due after it ends: tenants may be expected to pay all arrears at once. Still less has there been any proposal to take regulatory action against landlords who use Covid-19 as an excuse to make tenants homeless. Instead the government has published non-statutory guidance inviting landlords to offer ‘support and understanding’ to struggling tenants. One chambers, which principally represents landlords, wrote to its clients last month to say that the government’s proposals at that point did ‘not of themselves prevent evictions … Notices served pre- the Act coming into force can be used to start possession proceedings.’ Eventually, after criticism in the press and Parliament, the government grudgingly conceded a three-month stay on possession proceedings from 27 March. Nothing has been done about rent arrears, and hundreds of thousands of people face the prospect of losing their homes once the lockdown ends.