Page 150 - Solving Housing Disputes

344
floated the idea, substantially about equality of arms and of definition that
means that the least able to cope for themselves must be as empowered as the
best resourced. A service like the HDS - inquisitorial rather than adversarial,
conscious that tenants will often be vulnerable, trained to identify and assist
the vulnerable, unconstrained by what are in the real world artificial legal
characteristics, charged to seek out the real causes of disputes and achieve
solutions which address underlying problems, with a duty to protect parties
and wherever possible to keep people in their homes - offers much more than
a solicitor, Law Centre or advice agency, reeling from austerity and its cuts
345
to legal aid and untrained and unresourced in many of the underlying issues,
346
can do.

7. This is not to criticise the services that solicitors, Law Centres and advice
agencies provide, but to recognise the reality that for many tenants many
housing problems are not confined to the legal issues and that most vulnerable
people are not concerned about legal victories but want long-term resolution
of their problems and long-term provision of their needs. The HLPA Dissent
asserts that their members and the system, including judges, recognise and
inquire into underlying problems, illustrating disrepair, mental health and
benefits, but it does not say what is done about them, failing to recognise that
the HDS is intended to take an active approach to resolve problems,
employing skills with which to do so, a role that the Dissent has not, I think,
347
comprehended (see in particular its para. 32).

they and many in the profession were much more sympathetic, than the protective legislation comprised
in Rent Acts and Housing Acts.

344 Housing Dispute Resolution [2019] JHL 39; Housing Rights and Wrongs - The Beat Goes On [2019]
J.H.L. 79.

345 Even if legal aid is liberalised, limits will inevitably remain and in any event, the private sector will
not enjoy the powers to effect resolutions that the HDS is intended to exercise, see, e.g., Report, para.
2.51.

346 Law Centres - if properly funded - do often have a non-lawyer resource on staff. Much of my own
concern about the adversarial system was formed early in my career by two years at Small Heath Law
Centre in Birmingham, where the professional staff included a non-lawyer and a collaborative - and
inquisitorial - approach was instilled between the Law Centre and the local authority towards the
resolution of problems without recourse to litigation.

347 A court cannot order a benefits reassessment or back-dating; the County Court in a housing case
cannot order a Care Act 2014 assessment or similar. Whilst it is undoubtedly true that many District
Judges and tenant lawyers will use pressure (including disclosure orders) to try to resolve welfare benefits
144