The exercise of judicial discretion in rent arrears cases - Sheffield ...
The exercise of judicial discretion in rent arrears cases - Sheffield ... The exercise of judicial discretion in rent arrears cases - Sheffield ...
elieved to be a sign that they were taking the proceedings seriously and that they were prepared to do something to resolve the problem: “People who bother to turn up, particularly if they’ve got a job and they’ve got to take time off work to, to come…you, you start off by wanting to assume they’re genuine and it’s a good start, yes”. (DJ K) Conversely, if the tenant did not attend, this could be interpreted as a lack of interest: “If the tenant doesn’t attend…you then take the view, if they aren’t here they’re not taking it seriously.” (DJ C) Evidence of tenants’ commitment to face up to their problems was clearly a very influential factor in determining judges’ approach to possession hearings. For some judges attendance was perceived as an indicator that the tenant was taking responsibility for the debt and was making an effort to help themselves. In these circumstances they were predisposed to take a more favourable approach to the case, as a number of judges explained: “They’re clearly taking the proceedings seriously and they’re concerned about their position and they want to do something to resolve the problem. I’m always reasonably happy to try to help people who are prepared to help themselves.” (DJ I) “I mean loath though I am to make an outright order, I'm much more sympathetic to somebody who’s engaged with the procedure and tried to do something about it.” (DJ Y) Equally important was the impact of tenants’ failure to attend and/or to produce evidence that they had tried to resolve the problem prior to the court hearing. In the absence of tenants’ active involvement in proceedings a number of judges indicated that they would be more likely to take a hard line: “The only reason why I would think it was reasonable to turn somebody out is if they have made no effort whatever to get their housing benefit claim sorted out or whatever.” (DJ T) Lack of engagement with the judicial process was seen by some as a mark of disrespect which made it more likely that an outright possession order would be ordered: “It’s really their non-attendance that means it’s more likely there’s going to be an outright order and their non-attendance, their non-completion of the reply form, their non-co-operation with the housing officer who may have gone to see them, then there’s more likely to be an outright order because they’re not here to offer anything.” (DJ S) The way in which individual judges measured motivation varied but tenants’ demeanour and attitude to the proceedings were often commented on and could be critical in determining the type of order made: 59
“I think in terms of exercising discretion, I just think the way people do communicate and what they say does have some impact on..., if they’re saying, ‘Oh, I don’t really care,’ and, you know, being abusive and all the rest of it, it might have an impact on whether or not I think that they’re likely to comply with any order I make.” (DJ S) District judges assessed tenants’ motivation in a variety of ways. Defendants’ dress codes, body language, tone of voice were all mentioned in the interviews as key indicators of how an individual’s credibility could be measured. For some judges, however, equally important was their instinctive feel for the case, and these interviewees said they relied on their “gut instinct” and “common sense” when making decisions: DJ: “I’m particularly concerned about a tenant’s motivation to do something about their predicament. Q: And how would you gauge that? DJ: (Pause) Probably differently in every single individual case. It’s very difficult this…because everyone’s different. You have to be aware of stereotyping them…some people have very great difficulty in, in saying, something across the desk to a strange judge, you know, and you have to…dig it out of them. And it doesn’t necessarily mean they’re not interested in sorting themselves out. Other people can be a bit too glib about it…but in the end you just have use your experience of people and common sense to assess them.” (DJ K) Judges said they were looking for evidence as to whether tenants genuinely wanted to resolve their problems or not and that this factor was influential in determining whether they thought tenants could be trusted to keep to the terms of a suspended possession order or adjournment: “I’m weighing it up then as to is this person kidding me or is he genuine. I suppose all judges like to think they can normally distinguish…so I’ll take that into account as well, if you like, the demeanour and actions of the tenant from…first of all being given the notice, and then secondly from being served with the pre-pleadings,… So…that is the main thing, can they be trusted, I suppose, it comes down to.” (DJ D) For some however, the physical demeanour of the tenant was considered less important than whether they accepted their need to seek advice on the management of their affairs: “Their acceptance of some proper advice and their acceptance of a need to sort a budget out, will influence my decision as to whether I’m going to make a final order, an outright order or a suspended order.” (DJ S) The level of arrears and tenants’ efforts to deal with the problem We were interested to establish if the level of arrears measured either in terms of the total amount owed or as a proportion of the number of weeks rent outstanding, were key factors in determining outcomes. While there was broad agreement amongst judges that the level of arrears and payment history were important factors, there was no single voice as to why they were important or what impact they would have on the exercise of discretion. 60
- 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
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- 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
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- Page 39 and 40: Neither of the judges seemed to con
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- 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: approach he was more confident in t
- 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
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- Page 87 and 88: What must be emphasised is that whi
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- Page 95 and 96: Two of the judges interviewed felt
- Page 97 and 98: DJ: I’d be inclining towards the
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- Page 103 and 104: Table 10: Outcomes in Ground 8 case
- Page 105 and 106: Others were, however, prepared to g
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- Page 111 and 112: Chart 13: Impact of family make up
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- Page 117 and 118: shows that the vast majority of tho
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“I th<strong>in</strong>k <strong>in</strong> terms <strong>of</strong> exercis<strong>in</strong>g <strong>discretion</strong>, I just th<strong>in</strong>k the way people do communicate<br />
and what they say does have some impact on..., if they’re say<strong>in</strong>g, ‘Oh, I don’t really<br />
care,’ and, you know, be<strong>in</strong>g abusive and all the rest <strong>of</strong> it, it might have an impact on<br />
whether or not I th<strong>in</strong>k that they’re likely to comply with any order I make.” (DJ S)<br />
District judges assessed tenants’ motivation <strong>in</strong> a variety <strong>of</strong> ways. Defendants’ dress codes,<br />
body language, tone <strong>of</strong> voice were all mentioned <strong>in</strong> the <strong>in</strong>terviews as key <strong>in</strong>dicators <strong>of</strong> how<br />
an <strong>in</strong>dividual’s credibility could be measured. For some judges, however, equally important<br />
was their <strong>in</strong>st<strong>in</strong>ctive feel for the case, and these <strong>in</strong>terviewees said they relied on their “gut<br />
<strong>in</strong>st<strong>in</strong>ct” and “common sense” when mak<strong>in</strong>g decisions:<br />
DJ: “I’m particularly concerned about a tenant’s motivation to do someth<strong>in</strong>g about<br />
their predicament.<br />
Q: And how would you gauge that?<br />
DJ: (Pause) Probably diffe<strong>rent</strong>ly <strong>in</strong> every s<strong>in</strong>gle <strong>in</strong>dividual case. It’s very difficult<br />
this…because everyone’s diffe<strong>rent</strong>. You have to be aware <strong>of</strong> stereotyp<strong>in</strong>g<br />
them…some people have very great difficulty <strong>in</strong>, <strong>in</strong> say<strong>in</strong>g, someth<strong>in</strong>g across the<br />
desk to a strange judge, you know, and you have to…dig it out <strong>of</strong> them. And it<br />
doesn’t necessarily mean they’re not <strong>in</strong>terested <strong>in</strong> sort<strong>in</strong>g themselves out. Other<br />
people can be a bit too glib about it…but <strong>in</strong> the end you just have use your<br />
experience <strong>of</strong> people and common sense to assess them.” (DJ K)<br />
Judges said they were look<strong>in</strong>g for evidence as to whether tenants genu<strong>in</strong>ely wanted to<br />
resolve their problems or not and that this factor was <strong>in</strong>fluential <strong>in</strong> determ<strong>in</strong><strong>in</strong>g whether they<br />
thought tenants could be trusted to keep to the terms <strong>of</strong> a suspended possession order or<br />
adjournment:<br />
“I’m weigh<strong>in</strong>g it up then as to is this person kidd<strong>in</strong>g me or is he genu<strong>in</strong>e. I suppose<br />
all judges like to th<strong>in</strong>k they can normally dist<strong>in</strong>guish…so I’ll take that <strong>in</strong>to account as<br />
well, if you like, the demeanour and actions <strong>of</strong> the tenant from…first <strong>of</strong> all be<strong>in</strong>g given<br />
the notice, and then secondly from be<strong>in</strong>g served with the pre-plead<strong>in</strong>gs,… So…that<br />
is the ma<strong>in</strong> th<strong>in</strong>g, can they be trusted, I suppose, it comes down to.” (DJ D)<br />
For some however, the physical demeanour <strong>of</strong> the tenant was considered less important<br />
than whether they accepted their need to seek advice on the management <strong>of</strong> their affairs:<br />
“<strong>The</strong>ir acceptance <strong>of</strong> some proper advice and their acceptance <strong>of</strong> a need to sort a<br />
budget out, will <strong>in</strong>fluence my decision as to whether I’m go<strong>in</strong>g to make a f<strong>in</strong>al order,<br />
an outright order or a suspended order.” (DJ S)<br />
<strong>The</strong> level <strong>of</strong> <strong>arrears</strong> and tenants’ efforts to deal with the problem<br />
We were <strong>in</strong>terested to establish if the level <strong>of</strong> <strong>arrears</strong> measured either <strong>in</strong> terms <strong>of</strong> the total<br />
amount owed or as a proportion <strong>of</strong> the number <strong>of</strong> weeks <strong>rent</strong> outstand<strong>in</strong>g, were key factors<br />
<strong>in</strong> determ<strong>in</strong><strong>in</strong>g outcomes. While there was broad agreement amongst judges that the level<br />
<strong>of</strong> <strong>arrears</strong> and payment history were important factors, there was no s<strong>in</strong>gle voice as to why<br />
they were important or what impact they would have on the <strong>exercise</strong> <strong>of</strong> <strong>discretion</strong>.<br />
60
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