Page 151 - Solving Housing Disputes

8. Perhaps one of the significant differences between us is encapsulated in the
proposition that “we struggle to see...how widening the scope of the dispute
helps to defuse tension and preserve the parties’ relationship”; this fails to
recognise that disputes are often, not merely occasionally, triggered by factors
which do not see the light of day, that parties routinely misunderstand each
others’ motives and interests or objectives and that a holistic approach,
broadening the basis for understanding, can open up common ground that is
not otherwise or immediately obvious. Nor does the Dissent at any point
address the objective of ensuring that all issues between the parties are
resolved; nor does the Dissent appear to recognise the intention to bring the
local authority - both as enforcement authority and as housing authority - into
matters with which the HDS is concerned, e.g. actively bringing the issue of
rehousing into a claim for possession.

9. The Dissent also alleges a confusion on the part of the Working Party between
an adversarial system and actual adversariality, a confusion attributed to a
lack of more day-to-day experience of court and case-work, although out of
14 members of the Working Party, 6 were practising housing lawyers rather
than academics and two were full-time practising members of the judiciary
while two more were part-time Tribunal judges.

10. For myself, I spent 45 years practising in housing law 348 and while it is true
that for the second half of that or thereabouts I practised mainly (not
exclusively) in appellate courts, I was also Head of, or latterly the most senior
349
person at, Arden Chambers, the only set which (until its merger in 2018)
had housing law as its principal specialism and the only set which held itself
out to act equally for all parties to the housing process (landlords, tenants and

issues, it needs to be recognised that this is a practice which, while having much to commend itself, is
exercised on a dubious legal basis, see, e.g. North British Housing Association Ltd v Matthews [2004]
EWCA Civ 1736; [2005] H.L.R. 17: if, at the first possession hearing, a mandatory ground for possession
based on rent arrears is made out, the court has no power to refuse a possession order save in exceptional
circumstances; maladministration by a housing benefit authority is not a sufficiently exceptional
circumstance. The HDS is intended to have the ability to initiate or require benefit payments (including
back-dating) or a care assessment and other such remedies.

348 For tenants, the homeless, local authorities and social landlords.

349 When I left.

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