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 ...
Attitudes to tenant at hearings to suspend a warrant Several judges felt that last-minute involvement in the possession process, and indeed lastminute applications, reflected badly both on the tenant’s ability to organise their life, and on their commitment to the tenancy: “Often they come in at three o’clock in the afternoon before the morning of the eviction…if it was my roof over my head at risk…I’d be down the court like a shot.” (DJ I) One judge was concerned that this might almost amount to a deliberate tactic by the local CAB, which she felt might have been: “telling people that if you go at the very last minute, and you know… and particularly, go along with your children, that you’re more likely to have your warrant suspended. And actually that isn’t the case with me, because my first question is, ‘Well, you knew that you’d got an eviction date three weeks ago so why have you left it till this morning?’ And unless they can come up with a good reason…” (DJ Y) Responses to warrant scenarios In the interview, district judges were presented with a scenario involving a request by a single woman to suspend a warrant for possession. She had only paid rent intermittently since the suspended possession order was made and the arrears had risen from £750 to £975. The defendant had already been granted one suspension of the warrant and there had been no material change in her circumstances. In response to this set of facts many judges expressed concern about the defendant’s failure to adhere to the terms of the earlier suspension, but when asked to decide what order to make the majority thought that the defendant should be given one last chance. There were however, a minority of judges who felt that in a case involving a single person there were insufficient grounds to agree to the suspension and who therefore decided to refuse the application. This group spoke of their ‘difficulty’ in suspending a warrant where there had already been one suspension and the tenant’s circumstances did not appear to have changed, in the absence of ‘persuasion’ or ‘convincing’ evidence from the tenant: “I would have some difficulty in suspending this warrant I think… Particularly if she lived there on her own I’d have difficulty in suspending that. I mean she has had one opportunity already, and there is just no real explanation as to why she’s got herself into difficulties…” (DJ R) When presented with an identical scenario save for the fact that, rather than a single person, the defendant was identified as a mother with dependant children, all those who had originally said they would refuse the application to suspend the warrant subsequently agreed to either adjourn the case on terms or to suspend the warrant for one further time, as illustrated in Chart 13 below. 97
Chart 13: Impact of family make up on the outcome of an application to suspend a warrant for possession Refusal to suspend Suspend Adj 0 5 10 15 20 single woman Woman and 2 children However, the reasons why children were seen as an important factor were twofold. Some judges felt that this explained the tenant’s inability to keep up regular payments, as children create “greater calls on her, on her income”. Others would grant the suspension because of the effect on the children if the household were evicted. A further alteration to this scenario which was put to twenty of the district judges interviewed, was that the tenant had come up with an offer to pay a lump sum to the landlord. Only 10% would dismiss the application in these circumstances; 20% would adjourn the case for a short period, and 70% would agree to suspend the warrant. The majority of the interviewees were very concerned about the possibility of the tenant becoming further indebted, and would ask the tenant where she was getting the money from: “Aunty Flo would be one thing. The backstreet loan shark would be another. [That] would be, to my mind, evidence that she can’t afford to pay the rent…and I wouldn’t encourage her to go out of the frying pan into the fire. If it’s Aunty Flo, then yes, of course.” (DJ C) The final scenario, concerning an elderly woman tenant and her son who refuses to make up rent lost through a non-dependant deduction, has already been discussed in chapter 6. This was the scenario which caused the district judges the most concern, particularly for those whose formal approach was at odds with their sympathy for the tenant: “In the end I don’t think that I would be entitled as a matter of law to suspend where the rent wasn’t being provided for…it’s extremely difficult.” (DJ C) When pushed to say what their decision would be, the district judges were fairly evenly divided between granting the application to suspend the warrant, and adjourning the case. 98
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Chart 13: Impact <strong>of</strong> family make up on the outcome <strong>of</strong> an application to suspend a<br />
warrant for possession<br />
Refusal to<br />
suspend<br />
Suspend<br />
Adj<br />
0 5 10 15 20<br />
s<strong>in</strong>gle woman<br />
Woman and 2<br />
children<br />
However, the reasons why children were seen as an important factor were tw<strong>of</strong>old. Some<br />
judges felt that this expla<strong>in</strong>ed the tenant’s <strong>in</strong>ability to keep up regular payments, as children<br />
create “greater calls on her, on her <strong>in</strong>come”. Others would grant the suspension because <strong>of</strong><br />
the effect on the children if the household were evicted.<br />
A further alteration to this scenario which was put to twenty <strong>of</strong> the district judges <strong>in</strong>terviewed,<br />
was that the tenant had come up with an <strong>of</strong>fer to pay a lump sum to the landlord. Only 10%<br />
would dismiss the application <strong>in</strong> these circumstances; 20% would adjourn the case for a<br />
short period, and 70% would agree to suspend the warrant. <strong>The</strong> majority <strong>of</strong> the <strong>in</strong>terviewees<br />
were very concerned about the possibility <strong>of</strong> the tenant becom<strong>in</strong>g further <strong>in</strong>debted, and<br />
would ask the tenant where she was gett<strong>in</strong>g the money from:<br />
“Aunty Flo would be one th<strong>in</strong>g. <strong>The</strong> backstreet loan shark would be another. [That]<br />
would be, to my m<strong>in</strong>d, evidence that she can’t afford to pay the <strong>rent</strong>…and I wouldn’t<br />
encourage her to go out <strong>of</strong> the fry<strong>in</strong>g pan <strong>in</strong>to the fire. If it’s Aunty Flo, then yes, <strong>of</strong><br />
course.” (DJ C)<br />
<strong>The</strong> f<strong>in</strong>al scenario, concern<strong>in</strong>g an elderly woman tenant and her son who refuses to make up<br />
<strong>rent</strong> lost through a non-dependant deduction, has already been discussed <strong>in</strong> chapter 6. This<br />
was the scenario which caused the district judges the most concern, particularly for those<br />
whose formal approach was at odds with their sympathy for the tenant:<br />
“In the end I don’t th<strong>in</strong>k that I would be entitled as a matter <strong>of</strong> law to suspend where<br />
the <strong>rent</strong> wasn’t be<strong>in</strong>g provided for…it’s extremely difficult.” (DJ C)<br />
When pushed to say what their decision would be, the district judges were fairly evenly<br />
divided between grant<strong>in</strong>g the application to suspend the warrant, and adjourn<strong>in</strong>g the case.<br />
98
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