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

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The nature of the landlord became an important factor to balance against the occupiers’ rights: “Local authorities and a lot of the housing associations really can’t fulfil their obligations as they would like to, because they simply haven’t got the means to do it […]. If they didn’t have various people owing them quite a lot of money, there would be more to do the repairs.” (DJ O) Second, our interviewees expressed concern about the rights of the occupier who had not been paying their rent against the needs of others on the waiting list. For DJ W, this was a “subsidiary consideration” and “it’s just my slight concern that perhaps I should be more bullish…particularly with the more persistent defaulters”. On the other hand, DJ U would ask of some occupiers: “‘Look, if you’ve chosen not to pay it then why do you expect the court to help you now?’ If there’s a lot of people screaming out for accommodation, willing to pay for it, why should I give priority to people who are not prepared to do so. Not are unable to do so, but not prepared to." Again, this factor could be deployed at different parts of the process. For example, one interviewee used this in discussion of scenario 7 as a scare tactic: “‘Look, £4.50 a week, it’s not a king’s ransom, and you’re working. You’ve got to pay it otherwise you’ve got to go.’ And then, if the landlord’s there I invariably ask, ‘How many people on the housing list?’ A scare tactic to, not to frighten her, but to make her realise that if she wants to stay she’s being housed for £4.50, you know, 60p a day is not a lot to ask.” (DJ P) This factor could, however, be used to swing the other way, in favour of the tenant. At least, the social obligation implied in the role of ‘social landlord’ would not outweigh the duties to the occupier. Thus, for example, it was said that if you evict a mother and her children, you are creating more problems in society at large: “than you are trying to deal with the particular problem of them not paying the rent, and other people who would be good tenants being in the waiting list” (DJ I) Finally, it was said that, where tenants of social landlords were evicted, the problem was that the social landlord – or, rather, the local authority – would be required to re-house the tenant at some considerable cost. Although some interviewees recognised the likelihood of a finding of intentional homelessness, others raised concerns over the costs of rehousing, using this as a technique to deny possession to a social landlord: “But the local authority is really the end of the line in terms of housing. And they’re going to be the ones that pick up the pieces when somebody presents with a priority need. So I think that’s why, I suppose, I take a slightly different [approach], I say, ‘Look, hang on, you know, where’s this family going to go? You’re going to have to pick up the pieces anyway’.” (DJ H) 53
Conclusions In this chapter, we have demonstrated that relationships of trust and confidence do exist between district judges and claimants. These are not necessarily in opposition to judicial neutrality – indeed, neutrality may coexist with such relationships. Our interviewees were generally clear, for example, that there was no relationship between the request made by the claimant and the order granted. The judge would make the order they considered reasonable in the circumstances of the case. The observational data does suggest, however, the following, which may have an impact on the outcome of cases and which may add to actual or perceptions of inconsistency: There may be a relationship between requests for certain orders and the order granted by the judge. However, our data does not account for other relevant factors, such as level of arrears. This relationship appears stronger for certain judges than others, although the numbers of cases observed per individual judge are too small to test this relationship further. This relationship appears to be stronger for local authority claimants than for housing association claimants. However, this may be because local authorities’ requests were made on the basis of higher levels of arrears. The relationship appears to be subject to geographical variation. Our interview data also suggests that mistrust might have a negative impact on the relationship between request and outcome. Thus, the poor quality of certain claimants (particularly housing associations), or where the claimant requested an order regarded by the district judge as particularly unreasonable, might mean that the requested order is not granted (at best). Whilst the relationship between trust and outcome is merely suggestive, the interview data suggests that relationships of trust do impact on the process. This was particularly the case in the busier courts in our sample, where the district judges were scheduled to hear a case every few minutes or so. The overarching theme behind this was personnel management by district judges of claimants’ representatives, and there was evidence of a reverse effect as well (that is, management of judges by claimants’ representatives). This was made possible by a number of factors which might combine together – the shift to housing officers appearing on behalf of claimants; the ‘training’ process in which district judges tend to engage claimant representatives and vice versa; those representatives' length of time in 54
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The exercise of judicial discretion
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The Research Unit, Department for C
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Contents Executive summary i Chapte
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Executive summary The research ques
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the shift to housing officers appea
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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 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
Page 63 and 64: District judges differed on how muc
Page 65: There were three other, more genera
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,
Page 109 and 110: the basis of the original possessio
Page 111 and 112: 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
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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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