Rights or wrongs

Redressing the balance

Possession claims should be easy for landlords and tenants to understand. Nearly all of them should be concluded with one hearing lasting no more than about five minutes. The outcome must strike a fair balance between the particular interests of the occupier and wider community interests.

In the wake of two more Supreme Court decisions about possession claims (Pinnock [2010] and Powell [2011]) these objectives are further away than ever. The Supreme Court has decided that all mandatory rights to possession can be defeated by occupiers raising a human rights defence that the eviction would not be proportionate.

The House of Lords has intensified the problem by breathing new life into the idea that tenants can defend possession claims on the basis that the decision to evict is perverse (Kay [2006] and Doherty [2008]).

The government is aware that there is a problem, but it is failing to grasp the nettle. Its proposal for flexible tenancies, for example, is fine in theory but in practice the landlord's exercise of discretion to terminate the flexible tenancy could be challenged by an occupier. Possession claims against flexible tenants could be subject to the burdens, delays and expense that already afflict too many possession claims.

In another recent government initiative, housing minister Grant Shapps announced that 'neighbours from hell face swifter eviction'. He stated an intention to introduce a new mandatory ground for possession so that tenants with a track record of anti-social behaviour (ASB) could be evicted from their council or housing association property much more quickly.

The government's proposal to replace discretionary grounds to possession with mandatory ones in ASB cases is intended to deal with a real problem. But its solution is likely to founder for two reasons. First, there needs to be discretion in ASB cases where justice does not always fall into a black or white outcome. Second, the proposed reform would provide no comfort to the tenant who suffers at the hands of a neighbour with no track record of ASB.

The government is wrong to think that housing law needs more laws; in fact it could do with less. What it needs is a more robust attitude towards the laws that already exist. There is nothing wrong with judges being given discretions in possession claims. But the exercise of those discretions is influenced by a culture that indulges too many badly behaved tenants in too many opportunities to reform. Whether the issue is rent arrears or ASB this is a problem that takes its toll on the wider community.

Time wasting

The problem is particularly pronounced with decisions that judges make before and after judgment. These case management and post-judgment decisions can be difficult to appeal and are rarely drawn to the public's attention, but they are of profound importance in possession claims.

Robust judicial case management should be aimed at streamlining pre-trial requirements, avoiding adjournments, securing shorter trials, and at stopping the prolix and unnecessary cross-examination of neighbours that often happens in ASB cases. For example, in the ASB case of Pinnock, the county court judgment was given more than two years after Manchester issued its possession claim and the trial lasted six days. With robust judicial management it is difficult to see why the evidence in any ASB case should last more than a day.

In ASB and rent arrears cases suspended possession orders create their own post-judgment problems where applications to suspend warrants are routinely treated by district judges as trials rather than as applications to be dealt with summarily. Many of these applications result in judges giving the occupier 'one last opportunity' to reform, a mantra that is repeated in application after application, often in the same case.

The government needs to address the real problem by changing attitudes towards evictions. For over a decade, occupiers' lawyers have waved the article 8 banner, right to respect for a home, as if it trumped all other interests. Tenants are routinely described as 'vulnerable' and social landlords are instinctively viewed with suspicion. Evictions are seen as judgments that would leave the defendant sleeping on a park bench.

We need a culture where possession proceedings are simplified and where defendants' lawyers with self-centred human rights defences are given short shrift.

Very few tenants are truly vulnerable and nearly all are resourceful and able to cope with evictions. Social landlords invariably treat their tenants with understanding and concern and their housing management decisions need little judicial oversight. Judges need to be robust in managing cases from the perspectives that tenants are to be held responsible for their own actions and that social landlords are to be trusted. Laws are easier to change than cultures, but laws that fail to tackle cultural problems will always disappoint.

Jon Holbrook is a barrister at 2-3 Gray's Inn Square, London

Escalating the problem

It might come as a surprise that as a lawyer who frequently, although not exclusively, acts for tenants, I agree with some of the points of Holbrook's argument. I agree that possession proceedings should be easily under-standable by landlords and tenants. I agree that the outcome must strike a balance between the interests of occupiers and wider community interests (although the relative weights in that balance are largely set out in statute). I also agree that the proposed new grounds of ASB possession are likely to be of little aid to people suffering nuisance from neighbours. Lastly, I agree that delay in the courts is a growing concern, although I would add for tenants as well as landlords.

But that is about the limit of our agreement. For the rest, I rather fear that such a resolutely partisan view tends to contribute to the problems complained of, rather than leading to a solution.

It can hardly be a shock that there are lawyers acting for tenants who view social landlords 'with suspicion' when there are those acting for social landlords who believe that the landlord 'invariably' treats their clients with 'understanding and concern'. When the landlord refuses to acknowledge its own errors, shortcomings or failings, then a drawn out time-consuming possession claim becomes inevitable.

And of course social landlords have their failings. They are large, bureaucratic organisations. Their policy may be poor, or poorly implemented. Their housing officers may be badly trained, overworked, or lazy, or incompetent.

This is not to say that there are not many good staff, or that all social landlords suffer from such failings, or do so to the same degree.

But, as even a cursory glance at the reports of the Local Government Ombudsman or the Housing Ombudsman makes clear (and I choose these as examples where no lawyers are involved), any assertion of infallibility or even consistent lawfulness on the part of social landlords is counterfactual.

If such an invariable standard of understanding and concern did exist, there would have been no need for such a thing as the rent arrears possession pre-action protocol. That, in my view, has been genuinely helpful for both landlords and tenants and had some, if very limited, effect in reducing both the number of claims issued and the time spent on them.

Viewing tenants as resourceful repeat offenders, who are 'very rarely' actually vulnerable, leads to the same problems of complexity and delay. There certainly are some defendant tenants who match that description. But if the landlord's default response to a tenant raising vulnerabilities is that it is very unlikely to be true, lengthy proceedings are the almost certain result.

Arguing for a presumption in favour of one party or another is not a practical response to the issue of drawn out proceedings, not least when there is hardly a consensus about which way, if any, the courts routinely lean.

In any event, the majority of possession proceedings are dealt with in a five or ten-minute first hearing. But for defended possession claims against secure and assured tenants, there is no basis in statute for a presumption that the landlord is right. Ironically, it is in cases where the new article 8 defence is raised that there is a presumption that the landlord is entitled to possession.

To ask for the courts to use such a presumption in everyday claims is, however, to go against the will of parliament.

Giles Peaker is a solicitor at Anthony Gold

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