The exercise of judicial discretion in rent arrears cases - Sheffield ...

More documents

Recommendations

Info

General approach It was possible to discern a distinction between those district judges who were concerned about breach of the tenant’s obligations (“why haven’t they complied with the order?” DJ N), and the majority who took a more social welfare approach to deciding applications to suspend a warrant. The interviews showed that some district judges had a strictly legalistic view of applications to suspend warrants: “if it’s [i.e. a refusal is] the right order to make, it’s the right order” (DJ D). However, most would err on the side of compassion, with one district judge going so far as to say he would “very rarely refuse an application to suspend a warrant” (DJ A). This second attitude was criticised by landlords’ representatives in the focus groups, with one London representative citing a case in which there had been twenty-six successful applications to suspend a warrant. A more balanced view was expressed by DJ F who felt that, however reluctant he might be to make an order which would result in someone losing their home: “I think a judge is under a duty at some point to face up to it and say, ‘This is the end of the line. We can’t go any further.’ And from time to time I do.” Factors taken into account When asked what factors they would take into account when hearing an application to suspend a warrant, some district judges were unable or unwilling to say that they had any mental checklist: “You do this job for so long and…you have an instinctive feel for it, so it’s difficult to assess them [the factors] intellectually.” (DJ N) This group emphasised that each case is different: “Very often, on the day, when you’re faced with a particular human dilemma, you don’t know which way you’re going to jump until you see the whites of their eyes.” (DJ I) One judge relied on the parties to raise any pertinent factors: “Obviously you’ll find out from the local authority what the current position is and what their position is on the application. And then it’s up to the tenant then to say what…they want to say.” (DJ R) However, most district judges said they would take into account very much the same factors as they did for possession hearings, routinely listing the following: 95
the basis of the original possession order; whether the tenant attended the hearing at which this order was made; the arrears levels at the time of the possession order, and at the time of the applicant to suspend the warrant; any changes in the tenant’s circumstances following the original order; the tenant’s current family circumstances; what the tenant can afford to pay; whether any offer is being made, and if so, how realistic that is. An important additional factor mentioned by many of the judges interviewed was the number of previous applications to suspend, although attitudes to this were divided. Some district judges operated a rule of thumb: “A first application to suspend is very probably going to succeed, a second application may succeed or not, but three is about the limit – unless the earlier applications to suspend had been close together and/or a fairly long time ago.” (DJ C) The majority said that they “don’t put any limit on the number of times as a blanket rule at all” (DJ G) but would acknowledge that “you get awfully fed up when you’re after about five” (DJ W). Relations with landlords Although this was a very important factor in hearing possession claims (see chapter 5), the focus of most district judges at the stage of an application to suspend a warrant was on the tenant. This did not mean, however, that the landlord’s interests were ignored. For example, one judge explained that: “What I will often do if someone applies to suspend and I’m not sure, I’ll adjourn it for a month or two months on terms, and see if they can comply during that period. The local authority are happy with that because we’re giving them a test.” (DJ S) Another said that “I might appease the landlords by offering to adjourn it to make sure they pay.” (DJ A) There was an indication from at least one judge that the difference between private and social landlords could also be significant when dealing with this type of application, who referred to a recent refusal to suspend a warrant when: “This was a private landlord, who desperately needs the money from the rent, they’re struggling…” (DJ Y) 96
Page 1 and 2:
The exercise of judicial discretion
Page 3 and 4:
The Research Unit, Department for C
Page 6 and 7:
Contents Executive summary i Chapte
Page 8 and 9:
Executive summary The research ques
Page 10 and 11:
the shift to housing officers appea
Page 12:
Conclusions A wide and diverse rang
Page 15 and 16:
on the role of judges under the exi
Page 17 and 18:
Northern 1 court hears over 1500 ho
Page 19 and 20:
significance to a particular respon
Page 21 and 22:
The application may be adjourned; t
Page 23 and 24:
such forms are completed in less th
Page 25 and 26:
In November 2001, the Legal Service
Page 27 and 28:
Levels of arrears Although the reas
Page 29 and 30:
Table 2: Rent levels from ODPM stat
Page 31 and 32:
Table 5: Changes in outcomes of ini
Page 33 and 34:
Table 6: Impact of participation on
Page 35 and 36:
The focus group participants consid
Page 37 and 38:
consideration in this chapter, the
Page 39 and 40:
Neither of the judges seemed to con
Page 41 and 42:
chambers, where the possession list
Page 43 and 44:
Most of the district judges felt th
Page 45 and 46:
The views of the claimants’ group
Page 47 and 48:
Qualitative and quantitative data f
Page 49 and 50:
anything to say, and wants to stay
Page 51 and 52:
Table 7: Sources of training and up
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 and 104: Table 10: Outcomes in Ground 8 case
Page 105 and 106: Others were, however, prepared to g
Page 107: It is perhaps not surprising that,
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
show all

The exercise of judicial discretion in rent arrears cases - Sheffield ...

Create successful ePaper yourself

Delete template?

Save as template?