Page 152 - Solving Housing Disputes

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local authorities); as such, I was involved, to different degrees of closeness,
351
in much of the work of members of Chambers. The predominantly
collaborative approach implied in the Dissent is not one I recognise: to the
contrary, the aggressive approach not uncommonly taken in housing cases
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was a major stimulus for the HDS proposal. The proposition (Dissent,
para.34) that only three, named members of the Working Party have “recent
experience of acting for tenants and people in housing need” is offensive:
353
Justin Bates routinely acts for tenants, though these days more on a pro
bono basis than legally aided.

11. The concern about the development of housing law is also misplaced.
Housing is one of the most political areas of law and it is predominantly about
statutory law. Of course there are some issues which are developed in case-
law, e.g., as the Dissent correctly illustrates, the introduction of Convention
rights, and one can identify others, e.g. the meaning of “reside” and “separate
dwelling” as key elements in housing law. They are perhaps more prominent
because they generate appeals where the overwhelming bulk of cases turn on
facts or statutes, but even the majority of appeals are on the interpretation of
statutes, not case-law. In any event, the HDS does nothing to stand in the way
of the development of the law in cases taken to appeal (assuming that at least
one party is dissatisfied with the outcome of the HDS process).

12. The suggestion that the fragmentation of housing law “does not in reality
present a problem” (Dissent, para.10) is surprising and runs counter to the
broad consensus of contemporary thinking. It can pose very real problems:
consider by way of example one recent case, Adesotu v Lewisham LBC
[2019] EWCA Civ 1405; [2019] H.L.R. 48, in which it was held that a factual
argument that someone is disabled for Equality Act 2010 purposes cannot be
raised in a s.204 appeal but has to be the subject of free-standing proceedings

350 This is itself a feature of the adversariality that exists in housing law, just as there are two associations,
one founded for tenants and the homeless (HLPA), the other (the Social Housing Law Association -
SHLA) founded by lawyers who were excluded from HLPA under its then requirement that members act
predominantly for those groups.

351 The culture was one in which all members were encouraged to discuss cases with each other (subject
to conflict of interest and privilege issues) and with more senior members.

352 While adversariality and aggression are not synonymous, one can lead to the other.

353 Formerly of Arden Chambers.
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