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 ...
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) 61
Family make up The broad powers of the court in rented actions requires that judges consider a wide range of factors in deciding the most appropriate order to make. The findings from the focus groups with both practitioners representing defendants and those representing claimants suggests that the personal circumstances of the tenant is one of the set of factors which impact on the use of judicial discretion. In particular representatives of claimants felt that whether or not the defendant was single or had dependant children were very relevant. The experience of the London landlord focus group suggested the following: if the tenant was elderly, there would be an adjournment; if the tenant was a young, single male, there would be an order; if the tenant brought a baby to court, no order would be made; if there were children, there would be comments from district judges about the revolving door (of homelessness); if there was other vulnerability, then district judges would want to ensure that claimants had provided support. Analysis of observed court cases demonstrates that there were indeed variations in the profile of outcomes, depending on whether the defendant was single or had dependants. As Chart 8 below shows, defendants with children were less likely than single people to have an outright possession order (OPO) made against them, with 17% of single people being given an OPO as compared to 4% of those with dependant children. There was also a tendency for slightly higher levels of adjournments to be made in cases involving dependants; 49% of cases involving single people were adjourned as compared to 62% of those with children. Chart 8: Outcomes across all courts for single people (n=109) as compared to defendants with children (n=139) 70% 60% 50% 40% 30% 20% 10% 0% 17% 4% 31% 28% 49% 62 62% single with dependants 4% 6% OPO SPO Adj Dis/struck out
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Family make up<br />
<strong>The</strong> broad powers <strong>of</strong> the court <strong>in</strong> <strong>rent</strong>ed actions requires that judges consider a wide range<br />
<strong>of</strong> factors <strong>in</strong> decid<strong>in</strong>g the most appropriate order to make. <strong>The</strong> f<strong>in</strong>d<strong>in</strong>gs from the focus<br />
groups with both practitioners represent<strong>in</strong>g defendants and those represent<strong>in</strong>g claimants<br />
suggests that the personal circumstances <strong>of</strong> the tenant is one <strong>of</strong> the set <strong>of</strong> factors which<br />
impact on the use <strong>of</strong> <strong>judicial</strong> <strong>discretion</strong>. In particular representatives <strong>of</strong> claimants felt that<br />
whether or not the defendant was s<strong>in</strong>gle or had dependant children were very relevant. <strong>The</strong><br />
experience <strong>of</strong> the London landlord focus group suggested the follow<strong>in</strong>g: if the tenant was<br />
elderly, there would be an adjournment; if the tenant was a young, s<strong>in</strong>gle male, there would<br />
be an order; if the tenant brought a baby to court, no order would be made; if there were<br />
children, there would be comments from district judges about the revolv<strong>in</strong>g door (<strong>of</strong><br />
homelessness); if there was other vulnerability, then district judges would want to ensure<br />
that claimants had provided support.<br />
Analysis <strong>of</strong> observed court <strong>cases</strong> demonstrates that there were <strong>in</strong>deed variations <strong>in</strong> the<br />
pr<strong>of</strong>ile <strong>of</strong> outcomes, depend<strong>in</strong>g on whether the defendant was s<strong>in</strong>gle or had dependants. As<br />
Chart 8 below shows, defendants with children were less likely than s<strong>in</strong>gle people to have an<br />
outright possession order (OPO) made aga<strong>in</strong>st them, with 17% <strong>of</strong> s<strong>in</strong>gle people be<strong>in</strong>g given<br />
an OPO as compared to 4% <strong>of</strong> those with dependant children. <strong>The</strong>re was also a tendency<br />
for slightly higher levels <strong>of</strong> adjournments to be made <strong>in</strong> <strong>cases</strong> <strong>in</strong>volv<strong>in</strong>g dependants; 49% <strong>of</strong><br />
<strong>cases</strong> <strong>in</strong>volv<strong>in</strong>g s<strong>in</strong>gle people were adjourned as compared to 62% <strong>of</strong> those with children.<br />
Chart 8: Outcomes across all courts for s<strong>in</strong>gle people (n=109) as compared to<br />
defendants with children (n=139)<br />
70%<br />
60%<br />
50%<br />
40%<br />
30%<br />
20%<br />
10%<br />
0%<br />
17%<br />
4%<br />
31%<br />
28%<br />
49%<br />
62<br />
62%<br />
s<strong>in</strong>gle<br />
with<br />
dependants<br />
4%<br />
6%<br />
OPO SPO Adj Dis/struck out
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