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

A few judges used benchmark figures to trigger particular types of order (see Chapter 7) but
this was a relatively uncommon practice. Indeed not all judges considered the level of
arrears to be a key factor in determining the outcome of cases. As an alternative some
judges stated they scrutinised the payment history as a way of deducing information about
the tenants’ motivation and attitude to the arrears. The payment record could be used both
as an indicator of the tenants’ ability to keep to the terms of an order and as a measure of
reasonableness i.e. the capacity of the tenant to pay the rent and their arrears within a
reasonable time. In describing why the payment history was important many judges drew on
polarised stereotypes to explain what they were looking for. For example, a number of
judges explained their approach in terms of distinguishing between tenants who “can’t pay”
because of unemployment, ill health, or some other vulnerability and those that “won’t pay”
(reflecting evidence suggesting this difference – see p. 12):
“There is of course the hard core who simply will not pay no matter what, they don’t
see why they should. […] I’m much more likely to be tough on them because, you
know, there’s a difference between ‘can’t pay’ and ‘won’t pay’”. (DJ O)
“It’s fair to say that a lot of these people, they will fall into two categories: Either
they’re just feckless and irresponsible, they choose not to pay the rent and they’ve
got it coming to them or they can’t…they have problems you know, often around
drugs or alcohol, unemployment or illness.” (DJ J)
Others focused on whether the tenant was a habitual defaulter or if they were generally
reliable:
“What I’m looking for usually in a way is to see the pattern of what the tenant’s doing.
I mean are they a habitual defaulter who will make a bit of an effort when it comes to
court, but fall back again automatically and all the rest of it or whether they’re
somebody who’s got onto a particularly sticky period and is getting deeper into a
mess at the moment. Or whether they’re somebody who’s generally been very
reliable but just obviously struck some problem…” (DJ F)
Judges were concerned to establish if the tenant was trustworthy. In assessing the extent to
which tenants could be trusted, judges were looking for evidence of what efforts had been
made prior to the court hearing. In this context information about how tenants had
conducted themselves during the tenancy and the action they had taken to deal with the
arrears prior to the court hearing were thought to be important factors in determining
outcomes. As one judge pointed out, if the tenant had done nothing to help themselves, why
should the court?
“One of my guiding principles, is I look to see to what extent the tenant has helped
him or herself or is able to help him or herself and, if they are able to help
themselves. If they do absolutely nothing to help themselves then I don’t see why
the court should help them frankly.” (DJ U)
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