Page 133 - Solving Housing Disputes

(b) Particular care must be taken in this regard in relation to the rights of
vulnerable occupiers and “vulnerable” here must be interpreted broadly.

(c) Change as radical as that proposed with the HDS inevitably carries
significant costs and significant risks. This is not to say that such change
should never be undertaken. It should however, only be attempted with
a clear enough basis to believe that (a) it will represent an improvement
worth incurring such cost and taking such risk and (b) similar
improvement cannot be achieved by less costly and/or risky means.

(d) Notwithstanding any potential scope for increased use of alternative
dispute resolution, without root-and-branch reform of almost every aspect
of substantive housing law (and probably also of the English legal system
and housing market more generally) a substantial proportion of housing
disputes (and particularly the most serious disputes, including those in
relation to eviction) will necessarily end up being contested.

(e) Given this, it is essential that high quality legal advice and representation
is available to occupiers where needed. In practical terms, this means
ensuring a viable market of lawyers specialising in housing law who are
willing and able to take instructions under legal aid.

The proposed benefits of the HDS and the current position
4. In our view, the nature and proposed benefits of the HDS have not been
clearly or consistently articulated throughout the course of the Working Party
and to some extent the current position and problems have not been fully
understood. Taking the main proposed justifications, as we understand them
to be:

5. Non-adversarial: at the heart of the proposal for the HDS is the belief that the
current system is too adversarial and that this is unsuitable where there is an
ongoing relationship between the parties. It is firstly necessary to distinguish
between “adversarial” vis-à-vis inquisitorial, in terms of the nature of the
justice system, and “adversarial” as in combative and antagonistic. The HDS
proposal conflates these two concepts. It is correct that housing disputes are
determined in an adversarial system, because that is the system which exists
in this jurisdiction (and the report is remarkably casual about the implications
of abandoning this centuries-old system, which still applies to virtually every
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