Introduced in May 2021 under the Debt Respite Scheme (Breathing Space) Regulations 2020, we have noticed a sharp increase in the use of Breathing Space.
What Is Breathing Space?
Breathing Space is a legal moratorium that temporarily protects individuals in problem debt from most enforcement action by creditors, including landlords. There are two types:
- Standard Breathing Space – available to anyone receiving professional debt advice, lasting up to 60 days.
- Mental Health Crisis Breathing Space – available to individuals undergoing mental health crisis treatment, which lasts for the duration of treatment plus 30 days.
During a Breathing Space, creditors must pause enforcement activity, freeze interest, and refrain from contacting the debtor about the debt. For landlords, this means putting possession claims on hold.
The Effect on Possession Proceedings
The impact on landlords is significant where rent arrears grounds are being relied on to seek possession, as follows:
– Once a valid Breathing Space notification is issued via the Insolvency Service portal, any possession proceedings based in whole or in part on rent arrears must be paused. This includes halting court hearings and refraining from serving notices or enforcing possession orders. Creditors may apply to the court for permission to continue enforcement, but such applications are rarely successful unless there is compelling urgency or clear evidence of abuse of the scheme.
– Enforcement via a warrant or writ must stop if a tenant enters a Breathing Space after a court order is made.
Does It Affect Possession Claims Not Based on Rent Arrears?
Generally, no. The Breathing Space moratorium applies only to qualifying debts, and rent arrears fall squarely within that category. However, if possession proceedings are based on grounds other than rent arrears — such as breach of tenancy covenants unrelated to financial liabilities, or where possession is sought at the end of a fixed term (e.g. via a Section 21 notice) — the Breathing Space moratorium does not prohibit the continuation of those proceedings.
That said, there are a few practical points to bear in mind:
– If rent arrears form part of the evidence or reasoning behind the possession claim, even if not the formal ground, this could trigger complications if the arrears are a qualifying debt under a Breathing Space.
