Page 65 - Solving Housing Disputes

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automate and streamline the shorthold tenancy possession process.” Our
Working Party was near unanimous in concern that possession is not likely to be
suitable for continuous online resolution if that were to be the only form of
dispute resolution available, given the significant number of social housing
tenants involved, and the prospect that digital exclusion is widespread amongst
163
potential respondents. Any proposal to subject assured tenancy possession to
online decision making runs the risk of excluding a significant proportion of
tenants who lack digital capability and excludes the prospect of judges
164
identifying vulnerability through physical hearings.

3.20 Should HMCTS decide to proceed with continuous online resolution for
possession, it would be essential to ensure that use of online processes is
supported by an expansion in the availability of housing duty solicitors, who are
integral to the functioning of possession lists in the physical courts. Any “virtual
duty solicitors” would need to be prominently signposted to in any process,
potentially with the notice of a hearing date including details of the party’s duty

162 ‘HMCTS reform update – Civil’ (11 July 2019), available at https://www.gov.uk/guidance/hmcts-
reform-update-civil#possession A more recent MHCLG consultation paper suggested that what was
being introduced was “a new online system to speed-up and simplify the process for landlords…(that
will) reduce the errors that landlords can currently make when progressing a claim”, which suggests
filing and responses might be automated, as opposed to the introduction of continuous online resolution,
MHCLG, ‘A new deal for renting: resetting the balance of rights and responsibilities between landlords
and tenants’, July 2019 para 1.18 available at https://assets.publishing.service.gov.uk/government/uploa
ds/system/uploads/attachment_data/file/819270/A_New_Deal_for_Renting_Resetting_the_Balance_of
_Rights_and_Responsibilities_between_Landlords_and_Tenants.pdf

163 Briggs LJ in the Civil Courts Structure Review agreed, noting that “there has been virtually unanimous
support for the wholesale exclusion of claims for the possession of homes,” Briggs LJ, note 160 above
para 6.95.

164 The Civil Justice Council recently published a report on vulnerable witnesses and parties within civil
proceedings, which flagged the need for online court forms to flag up vulnerability through directions
questionnaires, Civil Justice Council, ‘Vulnerable witnesses and parties within civil proceedings: current
position and recommendations for change’, (February 2020) available at https://www.judiciary.uk/wp-
content/uploads/2020/02/VulnerableWitnessesandPartiesFINALFeb2020-1.pdf JUSTICE flagged the
need for there to be significant improvements in capturing data on vulnerability and adjusting for it,
noting that while “the flagging of vulnerability ought to take place at the earliest possible stage … there
are obvious challenges with digital processes in doing this. Some types of inherent vulnerability may be
readily apparent to advocates or judges in physical courts when they first see someone in person, and
adjustments can be considered at that stage. But when a person is engaging with a digital process, there
is no equivalent face to-face opportunity to identify vulnerability”, JUSTICE (2019), ‘Civil Justice
Council consultation on vulnerability in the civil justice system: JUSTICE response’, para 18 available
at https://justice.org.uk/wp-content/uploads/2019/10/Civil-Justice-Council-consultation-on-
vulnerability-in-the-civil-justice-system-JUSTICE-response-1.pdf

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