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

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Chapter 1: Introduction The nature of discretion “In modern society the law regulates the complex behaviour of millions of people. To do this efficiently – to do this at all – broadly applicable rules must be used. Yes such rules are bound to be incomplete, to be ambiguous, to fail in some cases, to be unfair in others. Some of the drawbacks of rules can be minimised by giving discretion to the administrators and judges who apply them. Yet doing so dilutes the advantages of rules and creates the risk that discretion may be abused” (Schneider, 1992). This study is concerned with one particular area of social life where judges have been given a clear discretion – that is whether to evict a tenant of a social landlord (by which we mean local authority or housing association) from their home for rent arrears. The law could operate in two ways – it could give discretion to the administrators (the landlords) or to the judges. It could also create a rule-bound structure or leave a much more open discretion in order to take into account the myriad of circumstances which may account for why arrears have arisen, what the tenant may be willing or able to do about them, and what order the landlord is seeking. As the legal structure set out in Chapter 2 indicates a broad discretion is given to judges in the type of cases we are considering, and this study seeks to examine how judges exercise this discretion. Aims of the research The focus of this research is on claims for possession for rent arrears. It may be noted that rent arrears are by far the most common reason for social landlords to seek possession, and that these make up over 95% of actions entered (Pawson et al, 2005). We refer to these actions throughout the report as housing possession cases, in which the landlord is the claimant and the tenant is the defendant. The exercise of judicial discretion, by which judges decide whether it is reasonable to grant possession and if so whether to suspend it on terms, has become an area of concern for policy makers for two reasons. First there has been an increasing use of the courts by social landlords, which appears to have been accompanied by an actual rise in evictions (Pawson et al, 2005). Secondly, the Law Commission has been conducting a comprehensive review of the law relating to the security and status of tenants, which has inevitably brought a focus 1
on the role of judges under the existing legal provisions, and consideration of how, if at all, the law should be changed. The Law Commission’s initial discussion paper (2002) considered whether discretion should be more structured because of criticism that “the outcomes of court process are insufficiently certain” (para. 12.13). At para. 12.16, the Commission accepted that there is an argument that the discretionary powers of the court should be more structured, with a list of factors to be taken into account by judges. Subsequently, in their final report the Law Commission (2003) noted, at para. 9.83, that there were widely expressed concerns about how judges exercised their discretion on reasonableness and recommended the introduction of a more structured discretion. This study was commissioned by the Department for Constitutional Affairs in January 2004, in part to inform the Law Commission review process. The outline for the project sought: “qualitative research to examine the approach of district judges to possession proceedings with the aim of identifying the key influences on decisions to grant, suspend, adjourn or refuse possession. The research should also examine the perceptions of possession proceedings of key stakeholders in the outcomes of housing litigation such as social landlords, solicitors representing landlords and tenants, and advice organisations.” The key questions which the research set out to examine were: What factors influence the orders which judges make in housing possession cases and how far do these accord with the perceptions of stakeholders? How far is there a consistency of approach between district judges? What criticisms, if any, do key stakeholders have of the way in which judges exercise discretion in housing possession cases? Methodology The primary objective of the study was to conduct qualitative research into the approach of judges to decision-making in possession cases. In order to understand how judges make their decisions we have adopted a three-fold approach. First we wished to ground the study in the reality of the experience of regular court users. Thus we commenced with focus groups of these users to examine their experiences. Secondly, gathering our own data on the approach of judges involved observing decision-making and recording the outcomes of cases (the latter essentially a quantitative technique). However, as illustrated in Chapter 2, the decision-making process in such cases can be very quick, and given the time pressures involved judges do not generally give a reasoned judgement as to why they have made a 2
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 10 and 11: the shift to housing officers appea
Page 12: Conclusions A wide and diverse rang
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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