In March 2020 JUSTICE published the working party report Solving Housing Disputes, chaired by Andrew Arden QC and kindly supported by Howard Kennedy and Charles Russell Speechlys.
In 2019 JUSTICE convened a Working Party to take a fresh look at the systems in place for the resolution of housing disputes. We think that courts may not be the best starting point for the resolution of housing issues and that there are likely to be other, better ways to resolve these matters.
Housing disputes are not uncommon: in England, there were 28,790 landlord possession claims and 5,648 mortgage possession claims filed between October and December 2018. Meanwhile homelessness has risen by 165% since 2010 and local authorities owe an increasing number of homelessness obligations against a backdrop of diminishing resources. But the mechanisms for resolving these disputes are inadequate. Cases are split between the County Court and the First-tier Tribunal, with the result that some have two separate hearings on the same facts. The adversarial nature of formal proceedings may threaten any ongoing relationship between parties. Inequality of arms is an ongoing problem. And since legal aid is only available in a limited sense, some people only speak to a lawyer when the loss of their home is imminent, even though early legal advice might have prevented the matter reaching court at all.
There have been various attempts over the years to tackle specific problems in housing law dispute resolution. In 2008, the Law Commission published a report which examined the case for a specialist housing tribunal. More recently, the Civil Justice Council has been piloting the ‘cross-ticketing’ of judges, so that cases which would otherwise have to be heard by both the First-tier Tribunal and the County Court can be heard concurrently by a judge wearing ‘two hats’. In November 2018, the Ministry of Housing, Communities and Local Government issued a Call for Evidence to consider the case for a new Housing Court.
The Working Party considered ways to promote access to justice through dispute resolution systems designed for the very people who experience a housing problem. The Working Party convened three subgroups which looked to testing ideas, gather evidence and create recommendations for reform of the housing disputes system.
The subgroups were
(a) Digitisation within housing disputes;
(b) Current processes used to resolve housing disputes;
(c) User needs/alternative dispute resolution within housing disputes.
The members of the Working Party were:
Chair – Andrew Arden KC (Former head of Arden Chambers)
Professor Helen Carr (Professor at University of Kent, part-time First-tier Tribunal (Property Chamber) judge)
Professor Martin Partington CBE KC (Emeritus Professor of Law, University of Bristol)
Professor Caroline Hunter (Head of York Law School, part-time First-tier Tribunal (Property Chamber) judge)
Judge Suzanne Burn (Deputy District Judge, retired District Judge)
Justin Bates (Barrister at Landmark Chambers)
Carlos Dabezies (Retired District Judge (civil and family)
Judge Tim Powell (Regional Judge for London, First Tier Tribunal (Property Chamber)
Alexandra Carr (Senior Associate, Howard Kennedy, JUSTICE board member)
Nick Billingham (Partner, Devonshires)
Daniel Clarke (Barrister at Doughty Street Chambers, HLPA representative)
Tessa Buchanan (Barrister at Garden Court Chambers, HLPA representative)
Alana Evans (HMCTS observer)
Alex Walters (Rapporteur)
We are very grateful to Howard Kennedy and Charles Russell Speechlys who supported the Working Party.
Too many people in England and Wales find it difficult to enforce access to housing or other housing rights. Over the past decade, homelessness has more than doubled and early legal advice and intervention to address housing problems, homelessness and associated or underlying issues has been greatly attenuated by cuts to civil legal aid. This has caused large parts of the housing advice sector to collapse, resulting in “advice deserts”, while local authorities are struggling under the demand for homelessness assistance. Beyond this context, housing dispute resolution suffers from disaggregation: there are too many places a person might go to resolve a dispute, with adversarial processes that can be difficult to access, navigate and understand for lay people. There is also lack of coherence in regulatory application and oversight and a need for greater emphasis on early resolution and conciliatory measures.
This working party reviewed the current system and presented proposals to create a more unified and accessible housing dispute system. Key to our recommendations are greater coherence, access to legal advice and information, and conciliatory methods to resolve disputes.
The report features 54 recommendations and is set out in two parts, making the case:
First, for a future model of dispute resolution, the Housing Dispute Service (HDS)
Second, irrespective of whether the HDS is introduced, for essential reforms to the current system.
The HDS would be an entirely new and distinct model for dispute resolution. It would fuse elements of problem-solving, investigative, holistic and mediative models utilised elsewhere in the justice system. The proposal offers a new approach premised not just on dealing with individual disputes, but rather on remedying underlying issues that give rise to housing claims and sustaining tenant-landlord relationships beyond the life of the dispute. The proposal for a fully formed HDS is bold, ambitious and will require significant time and investment. It will need rigorous evaluation through a pilot phase. If the pilot shows positive results, in the longer term the HDS will need to be integrated with and replace elements of the current system.
The HDS is not an idea accepted by all our members and was opposed by the tenant lawyers we consulted. For many, the solution to current problems is to remedy austerity era policies. Nevertheless, the majority of the Working Party consider that the HDS could offer a better outcome for all parties to housing disputes than the current system and is worth exploring – carefully, in limited scope, against relevant criteria and with advisory input from all relevant professional groups.
The second part of the report makes an array of procedural recommendations. These include urgent review of the housing advice landscape, with particular attention on advice deserts and flexibility in the use of public buildings for hearings in areas affected by court closures; simplification of pre-action protocols; and stronger encouragement in case procedures for alternative dispute resolution. The report also calls for greater support for people at risk of homelessness, so they can more easily access local authority assistance and the courts.
Finally the working party built on the Ministry of Housing, Communities and Local Government proposal for a Housing Complaints Resolution Service. We recommend a single-entry website that consolidates all types of housing dispute processes across courts, tribunals, tenancy deposit and Ombudsmen schemes through which all advice, structured guidance, ADR, procedural assistance and specialist adjudication could be accessed.
Andrew Arden QC, Chair of the Working Party, said:
The report looks broadly at housing disputes and makes a range of recommendations aimed at improving the current system and establishing a single point of entry for all disputes. However, there is no doubt that the headline point is the proposal for the piloting of a new Housing Disputes Service. I believe passionately that only something like the HDS can actually alleviate the strain of disputes with their landlords for tenants, promise something more hopeful to the homeless and advance housing conditions through a wider consensus.