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

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
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