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

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“I bet a fiver that no district judge would put a woman of sixty-eight out because of her useless son wasn’t paying the lolly.” (DJ I) This discourse is resonant with normative judgements. The personal view that it would be unjust to evict a woman of 68 is legitimised by reference to values that are attributed to all judges. A further example of the impact of social values is provided in the way in which perceptions and understandings of the social role of housing associations and local authorities impacted on the decision-making process in different ways and for different reasons (see chapter 5, above). These influences can be in part seen as a reflection of wider community and media attitudes and beliefs about welfare provision. However, socialising forces and normative cultural values are not simply transmitted into the mental world of the individual. As Lawrence (1995, p. 57) points out: “People interpret the social message so that different individuals’ version of the same cultural values are influenced by their own experiences and reflections”. Thus the particular personal characteristics and responses of judges combined with individuals’ decision-making goals were found to be influential in the decision-making process and indicate the importance of individual agency in the exercise of discretion. Legislation and legal factors The framework within which discretion is exercised is constrained by a body of housing law that reflects legal concepts and principles. At its most fundamental judges are required to make judgements that reflect agreed legal principles and take into account Court of Appeal decisions. The influence of these factors in the way judges exercise their discretion is apparent but equally it is evident that the law even where apparently at its most rigid as in the instance of Ground 8 cases, can provide scope for significant contest. While the majority considered that the use of Ground 8 by social landlords was inappropriate this did not necessarily lead to the adoption of strategies to circumvent the law. What is interesting, however, as the discussion in Chapter 8 illustrates is that some judges articulated their resentment of the imposition of restrictions on their personal use of discretion and used strategies to avoid compliance. Institutional arrangements The Woolf Enquiry into civil justice (Woolf, 1996) resulted in a number of fundamental reforms, in particular the institution of case management by judges. Not withstanding these reforms, managerial and physical resources clearly exert an influence. One of the most 105
important determining factors is the very short amount of time available to judges to hear evidence and make a decision. The listing practices used in county courts mean that on average judges have fewer than five minutes to arrive at a decision in housing possession cases. The speed with which cases are heard combined with the need to deal efficiently with a large list are reflected in the summary decisions made in response to the case study scenarios. It was also apparent that some judges employed strategies to gain more time for decision-making. These strategies most commonly involved the use of adjournments in order to obtain further evidence. Chapter 4 illustrates that different courts have adopted local practices for dealing with possession cases, and also that larger courts will be under greater pressure to deal with cases. Another factor which in a sense may be regarded as institutional, are the national problems of the housing benefit system, which are addressed in Chapter 7. That these have had an impact on outcomes is clear, in general leading to a much greater level of adjournments than would otherwise arise. Micro Factors The micro factors which come into play are those which relate to the individual circumstances of the case. As chapter 5 illustrates, in part these will be mediated by the relationship which the particular judge has with the officer presenting the case. The officer may make a particular request, the impact that this has on the district judge will be influenced by the judge’s own trust of that officer, which may in turn have been influenced by their previous experience of the officer (or lack thereof). Chapter 6 shows how factors relating to the tenant will also impact on the outcome of an individual case. The attendance and payment history of the tenant will impact on the outcome, but again this will not necessarily have a uniform outcome. Judges talk of “gut instincts” when making decisions, particularly as to the motivation of tenants to maintain payments. When decisions are made at such an intuitive level it will be difficult to predict what impact any particular tenant will have on the outcome. There is more consistency as to the impact certain objective factors will have. In particular, the presence of children, health problems, old age were shown to regularly impact on the outcome. 106
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The exercise of judicial discretion
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The Research Unit, Department for C
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Contents Executive summary i Chapte
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Executive summary The research ques
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the shift to housing officers appea
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Conclusions A wide and diverse rang
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on the role of judges under the exi
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Northern 1 court hears over 1500 ho
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significance to a particular respon
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The application may be adjourned; t
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such forms are completed in less th
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In November 2001, the Legal Service
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Levels of arrears Although the reas
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Table 2: Rent levels from ODPM stat
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Table 5: Changes in outcomes of ini
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Table 6: Impact of participation on
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The focus group participants consid
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consideration in this chapter, the
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Neither of the judges seemed to con
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chambers, where the possession list
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Most of the district judges felt th
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The views of the claimants’ group
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Qualitative and quantitative data f
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anything to say, and wants to stay
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Table 7: Sources of training and up
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sought with what they know the judg
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Chapter 5: Judges and landlords Int
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Chart 7: Orders granted by requests
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some unevenness in the impact of re
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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
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 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: shows that the vast majority of tho
Page 121 and 122: Thus it is likely that that even th
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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
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