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

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the shift to housing officers appearing on behalf of claimants; the ‘training’ process in which district judges tend to engage claimant representatives and vice versa; those representatives length of time in post; levels of confidence placed in those representatives; and the nature of the claimant as a ‘social landlord’. There is a wide variety of ways in which tenants’ circumstances and participation in the proceedings impact on judges’ use of discretion. Virtually all the judges interviewed considered attendance and payment history to be important factors they took into account when exercising their discretion, although given that decisions are being made about individuals in inevitably subjective ways there was less consistency in the way in which judges assessed tenants’ motivation. Thus the mere fact of attending the hearing did not necessarily result in a more favourable outcome for the defendant. Much greater consistency in approach and outcomes was noted in relation to the impact of the personal circumstances of tenants, such as: dependant children, problems caused by age, mental health problems or an inability to understand the proceedings. This suggests that while participation per se is not a key influence on outcomes, unless tenants attend hearings judges may not be made aware of factors which could have a significant impact on their decision-making process. So far as the level of arrears is concerned, some judges interviewed operated a ‘rule of thumb’, but said that these were always used flexibly so that other factors could be taken into account. Unsurprisingly the quantitative data suggested a relationship between the level of arrears and the outcome of possession cases, affecting the likelihood of the three main orders: outright possession, suspended possession and adjournment. As noted above housing benefit was a particular issue which emerged. Housing benefit problems are contributing to the increased number of adjournments. Claimants accept that adjournments are frequently necessary. Most district judges are well informed about housing benefit, both about the details of the system as it should work, and about the local iii
conditions under which it is administered. All of them have a certain amount of sympathy and patience with defendants, but are also aware that claimants are losing rental income while housing benefit problems are sorted out, and while possession cases are adjourned. Most district judges have become cynical about the capability of housing benefit administration to deal with claims, through their experience of hearing cases involving lost application forms and other information, incorrect assessment of benefit, and administrative delay. Ground 8 provides a mandatory possession ground for housing associations, where there are at least eight weeks rent arrears at the time of notice and hearing. Possession cases brought using Ground 8 caused district judges considerable difficulties. However, the recent case of North British Housing Association v. Mathews [2004] EWCA Civ 1736 may mean that the outcomes of the Ground 8 cases recorded in this study, and indeed the district judges’ responses in interview would now be different. The findings in relation to Ground 8 were: It is more commonly used in London. A lower number of suspended possession orders and a higher proportion of outright possession orders were made in cases involving Ground 8. Ground 8 is operating in a far from mandatory way, with district judges using a number of tactics to avoid having to make an outright possession order. The final part of the possession process, applications to suspend warrants for possession were perhaps the most difficult for judges, as they were acutely aware that their decision would have an immediate impact on the tenant’s life, and that of any family members. Although a number of factors were likely to be consistently taken into account by all judges interviewed, their responses to the scenarios varied considerably. Applications to suspend warrants were also the type of case which prompted judges to directly address the tenant in a possibly paternalistic manner, frequently referring them to sources of advice and warning them that this was their ‘last chance’ to remain in their home. Issues of consistency and fairness caused some concern particularly where district judges did not have the full case file. iv
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 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
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District judges differed on how muc
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There were three other, more genera
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Conclusions In this chapter, we hav
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Chapter 6: Judges and tenants Intro
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approach he was more confident in t
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“I think in terms of exercising d
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Family make up The broad powers of
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are trying to deal with the particu
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“I wouldn’t dream of making an
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interpreter. Similarly, many of the
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Judges are human too - personal rea
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understand the proceedings, a great
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What must be emphasised is that whi
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also the most common explanation gi
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anomalous case of West Country cour
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District judges’ knowledge. Some
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Two of the judges interviewed felt
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DJ: I’d be inclining towards the
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how he dealt with the housing benef
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Chapter 8: Particular decisions: gr
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Table 10: Outcomes in Ground 8 case
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Others were, however, prepared to g
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It is perhaps not surprising that,
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the basis of the original possessio
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Chart 13: Impact of family make up
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The advice to the tenant was often
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Chapter 9: Conclusions Where the la
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shows that the vast majority of tho
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important determining factors is th
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Thus it is likely that that even th
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110
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Lawrence J (1995) “Sentencing pro
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give a typology of the characterist
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In analysing cases percentages have
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Appendix 2 - Research instruments 1
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What factors would you ascribe thos
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20. Typically, how would you descri
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with a duty desk representative who
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DCA Research Series No. 6/05 The ex
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