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

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Table 4: Tenants’ participation in hearings Forms of participation DCA 2004 Nixon et al 1996 SAUS 1986 Tenant represented by solicitor/ duty desk 22% 6% 8% Tenant attending in person, but 20% 23% unrepresented 34%* Written submissions only 3% 10% No participation by the tenant 55% 62% 58% Total 100% 100% 100% *The SAUS study did not differentiate between participation in the form of unrepresented attendance or by written submission. The court data indicates a considerable change. The most striking is in the number of tenants represented by a solicitor or duty desk. This can in part be explained by the fact that all but one of the courts in this study had some form of duty desk available on possession days, compared with only half the courts in the 1996 study. Nonetheless in order to use the duty desk it is necessary for tenants to attend court and the figures do indicate that there has been some success in improving participation, with the percentage of tenants failing to participate at all falling from 62% to 55%. The written forms which are sent to tenants (N11R) have been redrafted on a number of occasions since first introduced. The percentage of those relying on these as their only form of participation has fallen from 10% to 3%. It may be that this is because of the greater level of attendance, so that those who previously were making only written representations are now also attending. A further 8% also used a written response in addition to attending. Outcomes The pattern of outcomes for first hearings shows an increased number of adjournments, generally in place of suspended possession orders. Given that the majority of cases recorded were in London, which had a higher rate of adjournments than the other courts, some care must be taken with this comparison. The increased use of adjournments is, however, also borne out by the outcomes in the cases assisted by the Legal Services Commission pilot duty desk schemes, where adjournments were obtained in 57% of cases (Myers Wilson, 2004). 17
Table 5: Changes in outcomes of initial hearings between 1996 and 2004 studies Outcome DCA 2004 Nixon et al 1996 (n=540) (n=248) Outright possession 13% 11% Suspended possession 22% 61% Adjourned 55% 23% Dismissed/withdrawn/costs only 9% 10% There are a number of factors which may be suggested to explain these changes. First, since 1996 the number of cases where housing benefit is an issue is likely to have increased. Although it emerged as an issue in 1996 (see Nixon et al, p. 49), it did not do so nearly as strongly as in the current study. We examine the impact of housing benefit on decisions in Chapter 7, below. Secondly, in the 1996 study a greater percentage of tenants who were represented by a solicitor or the duty desk obtained an adjournment. As the number represented in this study has increased significantly, because of the presence of duty desks in the courts, it is likely that the number of adjournments would also increase. Thirdly, a number of the claims involving housing associations also included claims based on Ground 8. Where the requirements for Ground 8 are made out the judge cannot grant a suspended possession order, and his/her choices are between an adjournment or outright possession (see further Chapter 8, below). At the time of the Nixon et al study in 1996, far fewer housing associations were using Ground 8, and accordingly more suspended possession orders might be expected. Finally and perhaps most significantly the adjournment has come to be used as a standard order for many judges in rent arrears cases (perhaps because of the factors outlined above). Many judges referred to using an adjournment on terms as a standard order, rather than a suspended possession order. For some this was a question of the level of arrears and it should be remembered that landlords are bringing cases to court with a lower average level of arrears (see above). If they are below a certain level some judges consider that it is not reasonable to make a possession order at all, and an adjournment on terms is appropriate. One stated clearly: “I rarely make possession orders, suspended or otherwise for arrears below five hundred pounds." (DJ L) 18
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 15 and 16: on the role of judges under the exi
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: Table 2: Rent levels from ODPM stat
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
Page 63 and 64: District judges differed on how muc
Page 65 and 66: 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,
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the basis of the original possessio
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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
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shows that the vast majority of tho
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important determining factors is th
Page 121 and 122:
Thus it is likely that that even th
Page 123 and 124:
110
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Lawrence J (1995) “Sentencing pro
Page 127 and 128:
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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