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

The interview data suggests that relationships of trust between district judges and claimants
(who are generally repeat players) is significant. Whilst the relationship between trust and
outcome is merely suggestive, the interview data suggests that relationships of trust do
impact on the process. This was particularly the case in the busier courts in our sample,
where the district judges were scheduled to hear a case every few minutes or so. The
overarching theme behind this was personnel management by district judges of claimants’
representatives, and there was evidence of a reverse effect as well (that is, management of
judges by claimants’ representatives). This was made possible by a number of factors which
might combine together – 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, for example, 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 indicates 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. The analysis of the database of recorded cases
103