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

away, but somebody’s home is actually one of the most fundamental things, it seems
to me.” (DJ H)
Some judges clearly felt there to be a tension between their role as an adjudicator on
matters of law and their emotional reaction to depriving some one of their home which they
reconciled by trying to make a difference. A few judges managed this tension by stepping
outside their judicial role and intervening in a more practical and creative way by, for
example, referring defendants to advice agencies and even contacting support agencies on
behalf of defendants.
“Some of them, they don’t come to the attention of any sort of authority until
something goes wrong with the rent and then they come along here… (Pause) and
so yes, I mean it does make a difference what I do, but only to a certain extent.”
(DJ O)
Others felt that their decisions could not be based on sympathy and that the extent to which
they could intervene was very limited as one judge explained: “Again, it’s very difficult to sort
of move out into being a sort of social welfare person, rather than a judge” (DJ F). In this
context the exercise of discretion involving a human element was seen as being very
important:
Conclusion
“It’s up to the particular judge to exercise his discretion as he thinks fit on the
particular day, and we can’t do it by tick-box, we’ve just got to do it…we’ve got to
have that sort of human element in it.” (DJ I)
Judges’ relationships with tenants are complex. There is a wide variety of ways in which
tenants’ circumstances and participation in the proceedings impact on judges’ use of
discretion. The explanations as to why judges valued the opportunity to engage with tenants
differed, but in general terms it was seen as being important in terms of ensuring that the
type of order made was both fair and sustainable. Virtually all the judges interviewed
considered attendance and payment history to be important factors which they took into
account when exercising their discretion, not least because it enabled them to find out more
about a tenant’s circumstances and their motivation to keep to the terms of an order. There
was, however, less consistency between judges in the way they assessed tenants’
motivation, so the mere fact of attending the hearing did not necessary result in a more
favourable outcome for the defendant.
Interestingly much greater consistency in approach and outcomes was noted in relation to
the impact of the personal circumstances of tenants. For example, in the scenarios involving
dependant children or problems caused by age, mental health problems or an inability to
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