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

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Dismissed/withdrawn/costs only 9% 10%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)
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