The exercise of judicial discretion in rent arrears cases - Sheffield ...
The exercise of judicial discretion in rent arrears cases - Sheffield ... The exercise of judicial discretion in rent arrears cases - Sheffield ...
For some, however, this belief that housing associations should not be using Ground 8 at all was related more specifically to a “Protocol” or “Code of Conduct” (referred to by three judges). For them this provided a basis for not granting possession. It is certainly the case that when the Housing Act 1988 first came into force the Housing Corporation issued guidance in the form of the Tenants’ Guarantee which stated that registered housing associations should only use certain of the statutory grounds which equated to those available against secure tenants, and did not include Ground 8 (Alder and Handy, 1991, p. 154). Housing associations are required by statute to have regard to this Guidance, although it does not give enforceable rights to the individual tenants. In any event by 1994 the Guidance had changed. This prescription as to which grounds could be relied upon had gone. The requirements placed upon them were simply that (Housing Corporation, 1994, para. C5): “prospective tenants should be fully informed of the rights of assured periodic tenant under the Housing Act 1988, and the specified grounds on which the Courts would be able to end the tenancy…” The current Guidance (Housing Corporation, 2004) from the Corporation states (para. 3.1.4): “Before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt. Where the use of Ground 8 forms part of an arrears and eviction policy, tenants should have been consulted and governing board approval for the policy should have been given.” What the Guidance does not do is preclude the use of Ground 8. For some district judges this dislike of the use of Ground 8 and the erosion of judicial discretion meant that they were prepared to adopt strategies to circumvent the certainty of the law. As a first line of attack, six judges commented on how they would examine the paper work very closely. “I have to say I don’t like it and therefore I insist upon all the requirements of the CPR being met… I feel that my hands are tied, I have to hear the case, I can’t adjourn it and I don’t like that and therefore I will look to see if there’s any way in which I can adjourn it because of some technical defect in the papers. So, it gives the time, a chance for the housing benefit to come through. But, if everything is clear, then I make the order…” (DJ U) In response to scenario 4 one commented that: “I would ask the housing association whether they agree to the adjournment. If they say they’re not… I would probably find a reason to adjourn. …the difficulty arises if I can’t find a genuine reason, but it’s not normally hard to find a reason. I can normally find a defect.” (DJ D) 91
Others were, however, prepared to go further. One simply suggested that Ground 8 cases were put to the end of the list: “The old way of looking at it was not to hear any evidence and adjourn it, but the recent dicta of the Court of Appeal suggest that that’s wrong... So I suppose the way I would now deal with it is…by putting the claimant out to the end of the day and suggesting that…I might not reach him. I don’t know. There’s always going to be a way.” (DJ B) This sort of approach was designed to put pressure on landlords not to insist on using Ground 8. Some judges clearly sought to persuade landlords either to reach an alternative agreement with the tenant or to not rely on Ground 8, but rather to proceed on the discretionary Grounds 10 and 11. This could be combined with very close scrutiny of the documents: “I tend to say to the housing officer... ‘Which ground are you proceeding on?’ meaning only Grounds Ten and Eleven…and we’ll have to look at the papers very closely to see that everything is in order, which it never is. Often the agreement’s undated, it’s not stamped, and they tend to say ‘Ten and Eleven.’” (DJ P) Most commonly reference was made to using adjournments. For most there was an awareness that any adjournment must be granted prior to any evidence being heard (although as has already been noted there was some dispute as to the legality of this). Some were aware that adjourning was something that they perhaps were not entitled to do legally. “I attempt not to hear it on the first occasion if I possibly can think of any excuse for adjourning it, to give the tenant a chance to try and bring the arrears down. I know what the law says, and I know I shouldn’t.” (DJ O) This general use of adjournments was also illustrated in the responses to Scenario 4. The fact that there was a potential housing benefit claim led a majority of the judges (15/26) to state that they would adjourn the case. For some the fact that there was a potential backdated housing benefit claim was important: “Well, you’d hope that the duty representative who knows these things leaps to his feet straight away before the housing officer can utter a word and says, ‘This is an application for an adjournment.’ It’s more difficult if they’re not represented, of course, because you often don’t know until you’ve got into it that that is what it is, although obviously you can see from the papers it’s a Ground Eight. I think we’d all try to adjourn it...if there is a reasonable prospect that there’s going to be some backdated housing benefit. Assuming the application’s made right at the beginning, before you’ve heard any evidence, I think we would try to ask penetrating questions to have evidence that the claim for backdating has been made, that there’s a reasonable prospect of it being granted.” (DJ Q) An extremely robust attitude was expressed by some judges to the fact that they may not have power to make an order: 92
- Page 53 and 54: sought with what they know the judg
- Page 55 and 56: Chapter 5: Judges and landlords Int
- Page 57 and 58: Chart 7: Orders granted by requests
- Page 59 and 60: some unevenness in the impact of re
- Page 61 and 62: Thus it can be seen that the type o
- Page 63 and 64: District judges differed on how muc
- Page 65 and 66: There were three other, more genera
- Page 67 and 68: Conclusions In this chapter, we hav
- Page 69 and 70: Chapter 6: Judges and tenants Intro
- Page 71 and 72: approach he was more confident in t
- Page 73 and 74: “I think in terms of exercising d
- Page 75 and 76: Family make up The broad powers of
- Page 77 and 78: are trying to deal with the particu
- Page 79 and 80: “I wouldn’t dream of making an
- Page 81 and 82: interpreter. Similarly, many of the
- Page 83 and 84: Judges are human too - personal rea
- Page 85 and 86: understand the proceedings, a great
- Page 87 and 88: What must be emphasised is that whi
- Page 89 and 90: also the most common explanation gi
- Page 91 and 92: anomalous case of West Country cour
- Page 93 and 94: District judges’ knowledge. Some
- Page 95 and 96: Two of the judges interviewed felt
- Page 97 and 98: DJ: I’d be inclining towards the
- Page 99 and 100: how he dealt with the housing benef
- Page 101 and 102: Chapter 8: Particular decisions: gr
- Page 103: Table 10: Outcomes in Ground 8 case
- Page 107 and 108: It is perhaps not surprising that,
- Page 109 and 110: the basis of the original possessio
- Page 111 and 112: Chart 13: Impact of family make up
- Page 113 and 114: The advice to the tenant was often
- Page 115 and 116: Chapter 9: Conclusions Where the la
- Page 117 and 118: shows that the vast majority of tho
- Page 119 and 120: important determining factors is th
- Page 121 and 122: Thus it is likely that that even th
- Page 123 and 124: 110
- Page 125 and 126: Lawrence J (1995) “Sentencing pro
- Page 127 and 128: give a typology of the characterist
- Page 129 and 130: In analysing cases percentages have
- Page 131 and 132: Appendix 2 - Research instruments 1
- Page 133 and 134: What factors would you ascribe thos
- Page 135 and 136: 20. Typically, how would you descri
- Page 137 and 138: with a duty desk representative who
- Page 139: DCA Research Series No. 6/05 The ex
For some, however, this belief that hous<strong>in</strong>g associations should not be us<strong>in</strong>g Ground 8 at all<br />
was related more specifically to a “Protocol” or “Code <strong>of</strong> Conduct” (referred to by three<br />
judges). For them this provided a basis for not grant<strong>in</strong>g possession. It is certa<strong>in</strong>ly the case<br />
that when the Hous<strong>in</strong>g Act 1988 first came <strong>in</strong>to force the Hous<strong>in</strong>g Corporation issued<br />
guidance <strong>in</strong> the form <strong>of</strong> the Tenants’ Guarantee which stated that registered hous<strong>in</strong>g<br />
associations should only use certa<strong>in</strong> <strong>of</strong> the statutory grounds which equated to those<br />
available aga<strong>in</strong>st secure tenants, and did not <strong>in</strong>clude Ground 8 (Alder and Handy, 1991,<br />
p. 154). Hous<strong>in</strong>g associations are required by statute to have regard to this Guidance,<br />
although it does not give enforceable rights to the <strong>in</strong>dividual tenants. In any event by 1994<br />
the Guidance had changed. This prescription as to which grounds could be relied upon had<br />
gone. <strong>The</strong> requirements placed upon them were simply that (Hous<strong>in</strong>g Corporation, 1994,<br />
para. C5):<br />
“prospective tenants should be fully <strong>in</strong>formed <strong>of</strong> the rights <strong>of</strong> assured periodic tenant<br />
under the Hous<strong>in</strong>g Act 1988, and the specified grounds on which the Courts would<br />
be able to end the tenancy…”<br />
<strong>The</strong> cur<strong>rent</strong> Guidance (Hous<strong>in</strong>g Corporation, 2004) from the Corporation states (para. 3.1.4):<br />
“Before us<strong>in</strong>g Ground 8, associations should first pursue all other reasonable<br />
alternatives to recover the debt. Where the use <strong>of</strong> Ground 8 forms part <strong>of</strong> an <strong>arrears</strong><br />
and eviction policy, tenants should have been consulted and govern<strong>in</strong>g board<br />
approval for the policy should have been given.”<br />
What the Guidance does not do is preclude the use <strong>of</strong> Ground 8.<br />
For some district judges this dislike <strong>of</strong> the use <strong>of</strong> Ground 8 and the erosion <strong>of</strong> <strong>judicial</strong><br />
<strong>discretion</strong> meant that they were prepared to adopt strategies to circumvent the certa<strong>in</strong>ty <strong>of</strong><br />
the law. As a first l<strong>in</strong>e <strong>of</strong> attack, six judges commented on how they would exam<strong>in</strong>e the<br />
paper work very closely.<br />
“I have to say I don’t like it and therefore I <strong>in</strong>sist upon all the requirements <strong>of</strong> the CPR<br />
be<strong>in</strong>g met… I feel that my hands are tied, I have to hear the case, I can’t adjourn it<br />
and I don’t like that and therefore I will look to see if there’s any way <strong>in</strong> which I can<br />
adjourn it because <strong>of</strong> some technical defect <strong>in</strong> the papers. So, it gives the time, a<br />
chance for the hous<strong>in</strong>g benefit to come through. But, if everyth<strong>in</strong>g is clear, then I<br />
make the order…” (DJ U)<br />
In response to scenario 4 one commented that:<br />
“I would ask the hous<strong>in</strong>g association whether they agree to the adjournment. If they<br />
say they’re not… I would probably f<strong>in</strong>d a reason to adjourn. …the difficulty arises if I<br />
can’t f<strong>in</strong>d a genu<strong>in</strong>e reason, but it’s not normally hard to f<strong>in</strong>d a reason. I can normally<br />
f<strong>in</strong>d a defect.” (DJ D)<br />
91
Change language