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

More documents

Recommendations

Info

explanations were given with judges typically stressing the very poor payment history and the fact that the defendant was a single person who had not attended the hearing: “We’ve got a single man, so…I haven’t got concerns about children and I’ve got a very, very poor history. I’ve got no contact, I’ve got somebody who is working apparently and therefore on the face of it has no good reason for not paying his rent. I have no doubt that I would make an outright order in this situation…especially given the level of arrears.” (DJ H) Conversely when judges were informed that the tenant had a mental health problem the pattern of outcomes was reversed with all those interviewed stating that they would adjourn the case until they were provided with evidence that the tenant was able to manage his affairs: “Right, that would make a huge difference. I’d want to know who that person was and…I’d adjourn it for that…person to attend.” (DJ Y) The impact of age and infirmity was explored in case scenario 8 which involved an application to suspend a warrant for possession made by a 68-year old woman whose Housing Benefit had been reduced because she had an adult son living with her who had failed to pay his contribution to the rent. When asked what order would be made in these circumstances again very high levels of consistency were noted with all those interviewed stating they would either agree to the suspension of the warrant or grant an adjournment on terms in order to provide the defendant with an opportunity to resolve the problem. Some judges took the view that it simply would not be socially responsible to refuse the request for a suspension of the warrant: “I would bet a fiver that no district judge would put a woman of sixty-eight out because her useless son wasn’t paying the lolly. We would just do our best to not face up to it and suspend it.” (DJ I) Others were aware that technically the tenant was responsible for the arrears and recognised that simply suspending the warrant would not necessarily result in a sustainable outcome. For these reasons they stated they would adjourn the case in order for the tenant to seek further advice about what action she could take: “Suggest to the woman that she goes to see a solicitor for advice in dealing with the son. […] As the tenant she’s responsible, but…you’d be very loath to evict a woman of sixty-eight. It might be that you’d want to get it back in four weeks' time, and see.” (DJ Z) In both these scenarios the pattern of outcomes reveals very high levels of consistency amongst the sample of judges, indicating that age and mental infirmity are factors which would have a very high impact on outcome, as suggested by the focus groups. 69
Judges are human too - personal reactions to hearings “These [warrant suspensions] are the hardest applications, you know. Forget all your complicated civil procedures and your trials and everything else. Kicking somebody out of their house is such a major thing.” (DJ D) As the above quote illustrates many judges were cognisant of the practical and emotional consequences of the decisions they made in possession cases. It was not uncommon for interviewees to reflect on their sense of personal responsibility evoked by adjudicating in possession proceedings. They were however, aware of the need to balance their emotional responses with their judicial role, as one judge explained: “Sometimes you have sympathy even when you make the order, even when you refuse the application to suspend, but you know judges’ decisions can’t be based on sympathy, you know it’s the justice of the case between the parties…but it doesn’t mean that we’re unfeeling so-and-so’s.” (DJ N) In this context it was not uncommon for judges to explain their decisions in terms of giving the defendant “one last chance”. Providing the tenant with a last opportunity to stay in their home was linked for many judges with a responsibility to impress on the tenant the need to adhere to the terms of the order. A number of judges said they frequently wrote “last chance” in large letters on the case file and then delivered a short lecture to the tenants explaining that if they defaulted on the terms of the order they would be evicted. One judge graphically explained how he approached the task of ensuring that defendants were clear about the terms of an order, in terms of play acting: “It may sound cruel, that’s the way I happen to feel that I can get people to realise…and this is why I would say it, I would write ‘last chance’. I will play, if you like, hard and fast with their emotions, because hopefully they’re going to go out of the room feeling really scared, and remember what that feeling in the pit of the stomach is like to think that they were about to lose their property, in the hope that they will remind themselves of that.” (DJ D) Others also talked about having a set pattern or routine way of trying to emphasise to defendants the need to repay outstanding rent: “The temptation here is to get a bit pompous and say to yourself, these tenants need teaching a lesson that the rent is to be paid weekly, monthly or whatever it is and not as and when they get round to it, which is generally a few days before the issue of a warrant, or a few days after the issue of proceedings or whatever it may be.” (DJ W) A number of judges commented on the gravity of possession proceedings and reflected on the human dilemma involved in depriving someone of their home as the following comment illustrates: “At the end of the day you’re talking about somebody’s home. There’s nothing more fundamental, it seems to me, apart from taking time to take someone’s children 70
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
Page 12:
Conclusions A wide and diverse rang
Page 15 and 16:
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 and 70: Chapter 6: Judges and tenants Intro
Page 71 and 72: approach he was more confident in t
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: interpreter. Similarly, many of the
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
Page 131 and 132: Appendix 2 - Research instruments 1
Page 133 and 134:
What factors would you ascribe thos
Page 135 and 136:
20. Typically, how would you descri
Page 137 and 138:
with a duty desk representative who
Page 139:
DCA Research Series No. 6/05 The ex
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?