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

In November 2001, the Legal Services Commission announced the selection of 13 schemes
for pilot funding (5 of these were new schemes, the remaining already existing). Evaluation
of these pilots (Myers Wilson, 2004) showed that the vast majority of those assisted were
eligible for Legal Help. It also concluded (p. 46) that “broadly speaking the Duty Schemes
were successful in securing a positive outcome for most clients, and often for landlords as
well.”
Criticisms
The procedure for housing possession cases has not been without criticism. In his Final
Report on Access to Justice, Lord Woolf said (Chap 16, para. 20):
“It is generally agreed that the present procedure for possession of tenanted property
on grounds of arrears is unsatisfactory.”
The particular concerns outlined above were echoed by the Law Commission (2002, para.
12.34):
“There have been concerns that suspended possession orders for rent have been
too readily given out, made in hearings listed in bulk for only a matter of minutes
each, with very low attendance rates and poor participation by occupiers. It also
appears illogical to focus the statutory regulation on a hearing which produces only a
suspended order, with very little statutory regulation of the process for dealing with
the breach of the order which then leads to the actual eviction.”
The incidence of rent arrears
The study is concerned with the use of legal proceedings to deal with tenants of local
authorities and housing associations who have rent arrears, and here we discuss the policy
background. A number of studies have examined why tenants of social landlords get into
arrears and the single most significant underlying factor is poverty. Tenants of social
landlords are less likely to be in work than the average and have a lower gross weekly
income (ODPM, 2004). Households in arrears are characterised by lack of work or low paid
work, combined with wider debt problems (Pawson et al, 2005, Ford and Seavers, 1998,
Gray et al, 1994). In Pawson et al’s recent study (2005) landlords pointed to the growing
vulnerability of tenants in what has become an increasingly residualised sector. Thus those
suffering from mental ill-health were particularly liable to accumulate arrears.
Although research into arrears has generally characterised those in arrears as either “can’t
payers” or “won’t payers” (see e.g. Ford and Seavers, 1998), Pawson et al, suggest that a
more recent factor is changing attitudes to household debt, which while increasing debt
generally also made tenants less averse to incurring arrears.
12