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

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.
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