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

Conclusions
A wide and diverse range of factors was reported by judges as being influential in how they
exercised their discretion in individual cases with less consistency noted on the weight given
to different factors. There was no evidence of judges having regard to self-evidently
inappropriate factors, simply that they approached the task in the different ways set out
above.
What this suggests is that there can be no “easy” way to achieving consistency between
judges. Even where factors are consistently taken into account, this will not necessarily lead
to the same outcome. It is however, possible to conceptualise the decision-making process
in terms of a number of interrelated axes which represent a continuum of approaches.
The continuum of approaches is characterised by on the one hand by legalism, a reliance on
the framework of contract law and recognition of the role of the judiciary in debt
management. In contrast the opposite end of the spectrum is characterised by pragmatism,
a concern with social welfare issues and the primacy of the home. Where individual judges
place themselves within these continuums is informed by both macro and micro factors
including personal attitudes and beliefs which in turn may be influenced by the amount of
knowledge, experience and training received.
Thus it is likely that that even the introduction of some form of structured discretion which
states that certain factors must be taken into account, e.g. level of arrears, personal
circumstances of tenant, the impact on the landlord, will still lead to different outcomes for
similar cases.
Finally we would return to the importance of the decisions made in housing possession
cases. Judges were acutely aware of this and for many the human element could not be
ignored. This particularly impacted on decisions on application to suspend warrants for
possession. The hardest thing for judges is to make the final decision to put people out of
their homes.
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