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 ...
Others took the view that on occasions, as DJ J explained, housing benefit delays were due to tenants who: “prefer to bury their head in the sand [so that] despite two or three chases by housing benefit, the basic reason why the application hasn’t been processed, it has to be said, is the tenant’s fault, not the landlord’s.” However, on the whole, the district judges we interviewed were sceptical about information provided by housing benefit officers where this was contradicted by the tenant’s evidence in court. A typical view was that of DJ F: “I’m afraid that whereas at one time I’d have believed the housing benefit officer, I tend these days to give the benefit of the doubt to the tenants…I don’t think housing benefit officers go around deliberately lying, but I think they’re under such pressure of work that you can’t really rely on what they say these days, quite honestly.” This scepticism was borne out of experience: “When a tenant says, ‘I did send my review forms and they must have lost them’, I now know that that’s more likely to be true than not.” (DJ H) A further problem for district judges arises where the claimant is the local authority, and their representative at court gives ‘second-hand’ information obtained from colleagues in the housing benefit section, about the defendant tenant’s housing benefit claim. Again, many of the district judges interviewed felt that this type of information could not be relied upon. DJ Q explained that: “so often I’ve had cases where…sometimes the tenants actually produce a letter from housing benefit saying one thing, and the local authority [as landlord] says, ‘well, our information’s completely different’. You know, I’ve actually on occasion adjourned cases anyway, and directed that somebody from [housing benefit contractor] comes to court to tell me what actually is happening, because I can’t make head or tail of it.” This lack of trust about housing benefit information was in strong contrast to the acceptance by most judges of other evidence given by housing officers (see Chapter 5, above). Housing benefit as a factor in determining reasonableness and type of order Many of the district judges raised the issue of housing benefit when asked about their ‘mental checklist’ of factors to be taken into account in considering reasonableness. The amount of housing benefit payable, and any shortfall between that amount and the full rent, appeared on the pro forma record of hearings used by district judges at London and Northern 1 courts. 81
Two of the judges interviewed felt that the tenant’s attitude towards making the housing benefit claim, and dealing properly and promptly with further queries made by the local authority, had a particular bearing on reasonableness. “The only reason why I would think it was reasonable to turn somebody out is if they have made no effort whatever to get their housing benefit claim sorted out.” (DJ T) “If I find that they just haven’t bloody well bothered to get their act together, that will count against them as far as I’m concerned. Whether it would count against them to the extent of having an outright order…but I certainly say ‘It is your responsibility to get round to the housing benefit office, find out what they want, and go away and get every scrap of paper that they want and get it back to them’, in the hope that they do.” (DJ I) This response reflects those noted in Chapter 6 in relation to tenants’ efforts in attending court, and showing that they have a commitment to the tenancy and preserving it. The interviews with the district judges made it clear that once there is some doubt about a housing benefit claim, the usual outcome is for the case to be adjourned for the problems to be sorted out. DJ S took the view that “whilst you sympathise with the tenants, in the end the rent’s got to be paid”, but nonetheless: “Where you’re clear that the problem has arisen not because of the tenant’s error, and therefore you shouldn’t be making an order, you should be adjourning it on terms to enable them to try and get it sorted out.” Another district judge agreed that such cases had to be adjourned, but would tell the tenant: “You will pay the £2.80 minimum payment and I am granting you an adjournment but I want to see this paid. It will come back before me and the first thing I’ll be asking is, ‘Has this been paid?’” (DJ Y) Most district judges clearly felt very frustrated at both their inability to do anything other than adjourn, and at the length of the adjournments. DJ P noted that “in some boroughs it can take many months, you know” to sort out housing benefit; he was also aware of the effect of repeated adjournments on tenants who work part-time and risk losing their income, possibly even their employment, due to having to attend court. However, on the positive side, DJ G noted that adjourning cases relieves pressure on that day’s list: “If it’s housing benefit, then you probably adjourn…it takes no more than a minute to have that consideration dealt with, and then you have got more time to deal with the rest”. Even where housing benefit is being claimed without any apparent difficulties, it remains a factor in rent arrears possession cases. The weight given by district judges to the level of rent arrears and the number of weeks in arrears, has been discussed above. Eleven district 82
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Two <strong>of</strong> the judges <strong>in</strong>terviewed felt that the tenant’s attitude towards mak<strong>in</strong>g the hous<strong>in</strong>g<br />
benefit claim, and deal<strong>in</strong>g properly and promptly with further queries made by the local<br />
authority, had a particular bear<strong>in</strong>g on reasonableness.<br />
“<strong>The</strong> only reason why I would th<strong>in</strong>k it was reasonable to turn somebody out is if they<br />
have made no effort whatever to get their hous<strong>in</strong>g benefit claim sorted out.” (DJ T)<br />
“If I f<strong>in</strong>d that they just haven’t bloody well bothered to get their act together, that will<br />
count aga<strong>in</strong>st them as far as I’m concerned. Whether it would count aga<strong>in</strong>st them to<br />
the extent <strong>of</strong> hav<strong>in</strong>g an outright order…but I certa<strong>in</strong>ly say ‘It is your responsibility to<br />
get round to the hous<strong>in</strong>g benefit <strong>of</strong>fice, f<strong>in</strong>d out what they want, and go away and get<br />
every scrap <strong>of</strong> paper that they want and get it back to them’, <strong>in</strong> the hope that they<br />
do.” (DJ I)<br />
This response reflects those noted <strong>in</strong> Chapter 6 <strong>in</strong> relation to tenants’ efforts <strong>in</strong> attend<strong>in</strong>g<br />
court, and show<strong>in</strong>g that they have a commitment to the tenancy and preserv<strong>in</strong>g it.<br />
<strong>The</strong> <strong>in</strong>terviews with the district judges made it clear that once there is some doubt about a<br />
hous<strong>in</strong>g benefit claim, the usual outcome is for the case to be adjourned for the problems to<br />
be sorted out. DJ S took the view that “whilst you sympathise with the tenants, <strong>in</strong> the end<br />
the <strong>rent</strong>’s got to be paid”, but nonetheless:<br />
“Where you’re clear that the problem has arisen not because <strong>of</strong> the tenant’s error,<br />
and therefore you shouldn’t be mak<strong>in</strong>g an order, you should be adjourn<strong>in</strong>g it on terms<br />
to enable them to try and get it sorted out.”<br />
Another district judge agreed that such <strong>cases</strong> had to be adjourned, but would tell the tenant:<br />
“You will pay the £2.80 m<strong>in</strong>imum payment and I am grant<strong>in</strong>g you an adjournment but<br />
I want to see this paid. It will come back before me and the first th<strong>in</strong>g I’ll be ask<strong>in</strong>g is,<br />
‘Has this been paid?’” (DJ Y)<br />
Most district judges clearly felt very frustrated at both their <strong>in</strong>ability to do anyth<strong>in</strong>g other than<br />
adjourn, and at the length <strong>of</strong> the adjournments. DJ P noted that “<strong>in</strong> some boroughs it can<br />
take many months, you know” to sort out hous<strong>in</strong>g benefit; he was also aware <strong>of</strong> the effect <strong>of</strong><br />
repeated adjournments on tenants who work part-time and risk los<strong>in</strong>g their <strong>in</strong>come, possibly<br />
even their employment, due to hav<strong>in</strong>g to attend court. However, on the positive side, DJ G<br />
noted that adjourn<strong>in</strong>g <strong>cases</strong> relieves pressure on that day’s list:<br />
“If it’s hous<strong>in</strong>g benefit, then you probably adjourn…it takes no more than a m<strong>in</strong>ute to<br />
have that consideration dealt with, and then you have got more time to deal with the<br />
rest”.<br />
Even where hous<strong>in</strong>g benefit is be<strong>in</strong>g claimed without any appa<strong>rent</strong> difficulties, it rema<strong>in</strong>s a<br />
factor <strong>in</strong> <strong>rent</strong> <strong>arrears</strong> possession <strong>cases</strong>. <strong>The</strong> weight given by district judges to the level <strong>of</strong><br />
<strong>rent</strong> <strong>arrears</strong> and the number <strong>of</strong> weeks <strong>in</strong> <strong>arrears</strong>, has been discussed above. Eleven district<br />
82
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