Page 154 - Solving Housing Disputes

15. The Dissent suggests that one of the applicable principles is “non-
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retrogression in the protection of occupiers’ rights”. I agree - HDS is
intended positively to advance occupier’s rights not reduce them. But, even
if, which I doubt, there is any prospect at all of a return to the putatively
halcyon legal aid days of the 1970s and continuing albeit always under
pressure, there may be something of a want of institutional history amongst
those who argue for it: it was never satisfactory, tenants were never
comfortable, results were never consistent, cases rarely achieved a long-term
end to strife, conditions were rarely good.

16. The Dissent is also, of course, concerned with the exclusion of lawyers. It
should be borne in mind that the objection is to exclusion from a small part
of the process (and our proposal for a pilot is to introduce the HDS to at least
one location where there is currently no housing advice). The process, as
outlined in the report at Report, paras 2.49-2.57, envisages that lawyers will
(as now) advise and negotiate with other prospective parties before referring
a client to the HDS as they will need to do given its mandatory use: if, as the
Dissent implies, many disputes end there, then HDS will not come into the
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picture and nothing will change.

17. During Stage 1, lawyers will assist clients in responding to requests for
information and/or in correcting inaccurate information procured by the HDS
(including that submitted by another party). At Stage 2, they will receive and
consider and advise their clients - in writing or not as they may decide - on
the initial, provisional assessment and on what their bottom line entitlements
are for the purposes of Stage 3. If no satisfactory agreement is reached at
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Stage 3, they will of course advise their clients on the Stage 4 adjudication
and represent them in any appeal, armed with the full information secured by
the HDS some or even much of which may not have been available under
current arrangements, especially given constraints on legal aid. Assuming a

358 Dissent, para.3(b).

359 Though it is hoped that, with time¸ all may come to see that there are positive advantages in the HDS
process which conventional “settling” does not achieve.

360 Parties always having an opportunity to consult with their lawyers before final agreement is reached;
the HDS having a positive obligation to ensure that the vulnerable are aware of this and equipped to do
so and to facilitate it - see Report, paras 2.25-2.27, 2.55.

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