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 ...
Chapter 7: Particular factors impacting on decisions: levels of arrears and housing benefit Introduction In this Chapter we examine two factors which, independently of the relationship between the district judge and the landlord or any characteristics of the tenant, impact on the outcome of cases. These are: The level of arrears Housing benefit problems Level of arrears The level of arrears, no matter the identity of the landlord or the judge’s relationship with representatives of the landlord or indeed the particular circumstances of the tenant, was a very significant matter for a number of judges in deciding the order that they would make. For some this was a matter of the number of weeks the tenant was in arrears, other judges were looking more at the sum in arrears, in general what was significant was the interplay between these two. A number of participants to the defendant representative focus groups noted that some district judges appeared to have thresholds over which they would generally grant certain orders. The thresholds were different in different locations and between different judges. The size of the arrears and the length of time of their accrual were generally regarded by claimants’ representatives as very influential in judicial discretion. This factor was also apparent in some but by no means all of the interviews with district judges. For one, 10 weeks was the point at which he would start considering an outright possession order: “Ten weeks is a kind of rule of thumb that I have… Obviously I have a discretion to expand it much more than that.” (DJ C) As has already been indicated in discussing the increased incidents of adjournments, some judges felt that some levels of arrears were too low to justify a possession order. This threshold varied between £200 (DJ U) £500 (DJ H; DJ L) £1000 (DJ O). Some clearly had a structure in mind: “If the arrears, for instance, are over £10,000 I’m going to need some persuasion not to make a possession order, if they’re between five…and ten then probably I’d be considering a suspended order. If they’re…between sort of one and five…it might be adjourned, it might be suspended, depending on how long they’ve gone on for and so on and so forth. But if they’re under a thousand I will almost never grant a possession order unless it’s one of the cases where housing benefit is paying all the rent and they’re suppose to pay £2.80 a week and they simply won’t pay it.” (DJ O) 73
What must be emphasised is that while some of the judges clearly did have some sort of framework or “rule of thumb”, as is shown by the above quotes, this is to be used flexibly, and is very much linked to the judges’ view of the tenants, which has been explored in Chapter 6, above. “I also look at the quantity of money, and I have sort of mental steps. They don’t necessarily follow them, but I sort of have a five hundred step and a thousand step and a two thousand step. But having said all that, in appropriate cases I’ll still grant an adjournment on terms even if it’s five thousand quid. You know, so you’ve got to look the specific circumstances.” (DJ X) The use of “rules of thumb” is a way of narrowing what is a very broad discretion to make decision-making easier and quicker. As Lempert (1992, p. 216) notes in relation to eviction decisions of the Hawaiian Housing Authority Eviction Board: “…what shapes the exercise of authorized or rule-given discretion. One important factor is that, when a decision-maker is repeatedly confronted with cases of a particular type, there is a tendency toward…‘shallow’ decision-making. That is, there is a tendency to eschew a deep probing of circumstances and to rely instead on a few key facts that can be used to fit cases to stereotypes. There are no doubt many reasons for this, including psychological mechanisms and the efficiency that routine processing allows.” The impact of judges considering the level of arrears is illustrated by the responses to scenario 1. While 24 of the judges stated that they would grant an outright possession order (with one adjourning) when the arrears were £2700, when this level of arrears was reduced to £495 only 9 stated that they would grant outright possession, with 8 suggesting a suspended possession order, 3 adjourning and 2 stating that they would make no order at all as the arrears were too low. Some judges were also concerned where arrears were unusually high at the date of the first hearing. For one, while the fact that the tenant had a high level of arrears was important: “There’s also…has the landlord waited until the arrears are very high before commencing proceedings? If so, why? Is it because of a slovenly policy or has it been that the tenants made promises or that the landlord’s given opportunity to the tenant? You know, it’s just…it’s just not black and white. (DJ N) One commented how he got “cross” with the landlord “if they’ve allowed the arrears to run up” (DJ T). Where landlords had allowed the situation to get out of control, this was clearly a factor in the judge not making the order that the landlord requested. Perhaps reflecting the findings by Pawson et al (2005) two judges (DJ R and DJ S) noted that landlords were more likely now to issue proceedings before the arrears got particularly high. 74
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Chapter 7: Particular factors impact<strong>in</strong>g on decisions: levels <strong>of</strong><br />
<strong>arrears</strong> and hous<strong>in</strong>g benefit<br />
Introduction<br />
In this Chapter we exam<strong>in</strong>e two factors which, <strong>in</strong>dependently <strong>of</strong> the relationship between the<br />
district judge and the landlord or any characteristics <strong>of</strong> the tenant, impact on the outcome <strong>of</strong><br />
<strong>cases</strong>. <strong>The</strong>se are:<br />
<strong>The</strong> level <strong>of</strong> <strong>arrears</strong><br />
Hous<strong>in</strong>g benefit problems<br />
Level <strong>of</strong> <strong>arrears</strong><br />
<strong>The</strong> level <strong>of</strong> <strong>arrears</strong>, no matter the identity <strong>of</strong> the landlord or the judge’s relationship with<br />
representatives <strong>of</strong> the landlord or <strong>in</strong>deed the particular circumstances <strong>of</strong> the tenant, was a<br />
very significant matter for a number <strong>of</strong> judges <strong>in</strong> decid<strong>in</strong>g the order that they would make.<br />
For some this was a matter <strong>of</strong> the number <strong>of</strong> weeks the tenant was <strong>in</strong> <strong>arrears</strong>, other judges<br />
were look<strong>in</strong>g more at the sum <strong>in</strong> <strong>arrears</strong>, <strong>in</strong> general what was significant was the <strong>in</strong>terplay<br />
between these two.<br />
A number <strong>of</strong> participants to the defendant representative focus groups noted that some<br />
district judges appeared to have thresholds over which they would generally grant certa<strong>in</strong><br />
orders. <strong>The</strong> thresholds were diffe<strong>rent</strong> <strong>in</strong> diffe<strong>rent</strong> locations and between diffe<strong>rent</strong> judges.<br />
<strong>The</strong> size <strong>of</strong> the <strong>arrears</strong> and the length <strong>of</strong> time <strong>of</strong> their accrual were generally regarded by<br />
claimants’ representatives as very <strong>in</strong>fluential <strong>in</strong> <strong>judicial</strong> <strong>discretion</strong>. This factor was also<br />
appa<strong>rent</strong> <strong>in</strong> some but by no means all <strong>of</strong> the <strong>in</strong>terviews with district judges. For one, 10<br />
weeks was the po<strong>in</strong>t at which he would start consider<strong>in</strong>g an outright possession order:<br />
“Ten weeks is a k<strong>in</strong>d <strong>of</strong> rule <strong>of</strong> thumb that I have… Obviously I have a <strong>discretion</strong> to<br />
expand it much more than that.” (DJ C)<br />
As has already been <strong>in</strong>dicated <strong>in</strong> discuss<strong>in</strong>g the <strong>in</strong>creased <strong>in</strong>cidents <strong>of</strong> adjournments, some<br />
judges felt that some levels <strong>of</strong> <strong>arrears</strong> were too low to justify a possession order. This<br />
threshold varied between £200 (DJ U) £500 (DJ H; DJ L) £1000 (DJ O). Some clearly had a<br />
structure <strong>in</strong> m<strong>in</strong>d:<br />
“If the <strong>arrears</strong>, for <strong>in</strong>stance, are over £10,000 I’m go<strong>in</strong>g to need some persuasion not<br />
to make a possession order, if they’re between five…and ten then probably I’d be<br />
consider<strong>in</strong>g a suspended order. If they’re…between sort <strong>of</strong> one and five…it might be<br />
adjourned, it might be suspended, depend<strong>in</strong>g on how long they’ve gone on for and so<br />
on and so forth. But if they’re under a thousand I will almost never grant a<br />
possession order unless it’s one <strong>of</strong> the <strong>cases</strong> where hous<strong>in</strong>g benefit is pay<strong>in</strong>g all the<br />
<strong>rent</strong> and they’re suppose to pay £2.80 a week and they simply won’t pay it.” (DJ O)<br />
73
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