Page 46 - Solving Housing Disputes

2.66 We would expect high quality, first instance decision making by the HDS at
a standard, by virtue of the use of housing specialists and its holistic approach,
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of that offered by FTT (PC) and District Judges currently. HDS decisions,
as the first-tier, would be appealable to the current appellate structure, to
Circuit Judges or Upper Tribunal. Appeals would be available on fact or law
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as of right. An appeal would normally generate an automatic stay on the
HDS determination save for those parts of the determination which are not
relevant to the appeal. Where the HDS conclusion suggests that a stay might
be inappropriate (e.g. anti-social behaviour, re-admission of an evicted
occupier) there would need to be a track which allowed it to recommend that
there be no stay, for the court to review at a hearing if the parties or the court
requires it.

2.67 We appreciate this would necessitate a restructuring of the court and tribunal
structure, with resources shifted to the appellate level and to the HDS from
the pre-existing structure. Our expectation would be that the piloting of the
HDS would assess the efficacy of this restructuring and the need for a
reallocation of resources across the court and tribunal estate. We recommend
specialist housing judges be allocated across the appellate level.

Legal advice

2.68 As described above, the HDS is a non-adversarial dispute resolution process,
where lawyers act in an advisory role, safeguarding the interests of
participants externally to, albeit throughout, each stage of the HDS process.
We envisage that lawyers will have a significant role through the HDS
process. Fundamentally, the HDS does not feature a hearing stage where
submissions are made and advocacy is needed. Instead, the HDS will explore
all the issues within a dispute with the benefit of written representations from
solicitors where needed. Lawyers will be needed to advise clients on the
merits of their case, to engage with the other party through informal
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negotiation to broker a solution without recourse to the HDS and to signpost

110 Arguably better in the sense that the range of material at HDS would not be limited by pleadings or
other formal statements of case, nor is the decision exclusively rights-based but problem-solving.
Moreover, while FTT judges and DJs have developed a considerable ability to “investigate”, they have
limited resources with which to do so.

111 Appeals of HDS determinations should be published.

112 As is currently common practice within the context of possession cases.
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