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

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non-attendance of tenants was frequently pivotal in their decision-making process. Views on the impact of tenants’ attendance at hearing clustered around the following issues: The effect of the physical reality of tenants' presence The opportunity to hear both sides of the story Attendance as a measure of tenants' commitment to keep to the terms of an order The effect of the physical reality of tenants’ presence Judges were aware that the simple “physical reality” of the tenant’s presence in court could be an influential factor in determining the type of order they would make. Views on the importance of attendance, however, covered a wide spectrum. For example, some judges interviewed were very explicit about the impact of the tenant’s presence whatever the other circumstances of the case: “It’s unlikely that I would make an [outright] order for possession with the tenant present.” (DJ B) “I almost would never make an outright order on the first appearance…I invariably will make an outright order if they’re not here” (DJ Y) Other judges were more reflective about the effect of attendance, acknowledging it to be only one of many factors they would take into account when arriving at a judgement. The mere presence of the tenant in court would not necessarily result in an outcome favourable to the tenant. Indeed some interviewees expressed the view that in practice attendance could be irrelevant or even detrimental to the defendants’ interests. For example one judge pointed out that although in general terms he felt it was beneficial for tenants to attend hearings this was not always the case: “…sometimes it’s against their interest to attend of course. You know, you get the odd tenant who, who plays merry hell and, and can shout and, and shows that whatever he is in regards to the tenancy, he's not committed to paying the rent.” (DJ O) Others reflected that the specific circumstances of cases were of far greater significance than the presence of the tenant in court: “Just by attending does not mean I’m not going to make an outright order. If they attend and the facts mean there should be an order, I’ll make an order, an outright order. If they attend and they’re not, those aren’t the facts, I won’t make an order.” (DJ S) In considering the different weight given to attendance versus consideration of material circumstances one judge offered an interesting reflection on how his approach had changed over time. He attributed this change to the fact that he had become more resilient and had learnt not to worry about the consequences of his decisions. As a result of his changing 57
approach he was more confident in the way in which he exercised discretion and felt that this resulted in better decisions: “It doesn’t worry me now if they attend, I really don’t think it makes any difference. It used to but I don’t think it does any more, when they attend. I’ve learnt to get harder, I suppose. I’ve learnt not to be worried too much about what happens. That sounds like callousness. (pause) Yes. If it’s the right order to make it’s the right order to make is, I suppose, the right answer…I think before it made a difference, I found it difficult to look at them and know that I was kicking them out of their house and they’ve got two children and she was crying her eyes out and everything else. But it doesn’t happen very often, but if it does happen, I can do it now far better than I could do six years ago…” (DJ D) The opportunity to hear both sides of the story A further common theme emerging from discussions about the impact of tenants’ attendance was the opportunity it afforded judges to find out more about the specific circumstances of cases and to gather material upon which discretion could be exercised. Many judges were aware that in the absence of the tenant, they only heard one side of the story and therefore had limited information upon which to base a decision. This led one judge to conclude: “Anything is better than nothing. You need material to exercise your discretion upon. The attendance is really beneficial.” (DJ G) The presence of the tenant in court was considered by some to provide an important opportunity to establish the viability of either agreements made prior to the court hearing or the terms of an order. It was also said to be valuable in ensuring that a realistic offer of repayment of the arrears were agreed and that in turn would influence the type of order made: “If you can extract from them, which you generally can, a realistic offer of something, I will always try and suspend it. But, yes, try and suspend it in those circumstances.” (DJ W) Having an opportunity to find out more about the personal circumstances which had led to the arrears also enabled judges to assess whether agreements made prior to hearings were likely to be sustainable: “It’s very important because if they don’t attend I don’t usually know their side and even if the local authority have said: ‘Well we’ve spoken to the tenant and this is what we’ve agreed’, I don’t know whether that agreement is sustainable by the tenant. …So their attendance to me is pretty crucial…it helps tremendously to make a better order.” (DJ S) Attendance as a measure of tenants’ commitment to keep to the terms of an order In addition to the impact of the tenants’ physical presence in court, attendance at hearings was used by some judges as a proxy measure of tenants’ attitude and approach to the situation. Where tenants attended court and engaged with the process it was commonly 58
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
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Conclusions A wide and diverse rang
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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 and 66: There were three other, more genera
Page 67 and 68: Conclusions In this chapter, we hav
Page 69: Chapter 6: Judges and tenants Intro
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
Page 117 and 118: shows that the vast majority of tho
Page 119 and 120: important determining factors is th
Page 121 and 122:
Thus it is likely that that even th
Page 123 and 124:
110
Page 125 and 126:
Lawrence J (1995) “Sentencing pro
Page 127 and 128:
give a typology of the characterist
Page 129 and 130:
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
Page 137 and 138:
with a duty desk representative who
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DCA Research Series No. 6/05 The ex
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