Page 73 - Solving Housing Disputes

3.31 Our evidence gathering suggests many social landlords do not engage with
tenants at the pre-action stage, meaningfully or at all. While we understand that,
historically, social housing providers employed housing officers to work with
tenants on the drivers of rent arrears at the pre-action stage, resourcing is such
that they are increasingly disposed towards dedicating resources to income
recovery and using the County Court process as a mechanism to secure rent
arrears repayment. Notwithstanding, it should be remembered that the court is a
mechanism of last resort. It is incumbent on housing providers to engage
meaningfully with tenants to resolve underlying problems, such as debt or
benefits, before initiating a claim. Housing providers should be required to detail
those pre-action endeavours when making a possession claim. We think the best
way to ensure this material comes before a judge is to ensure pre-action
engagement is clearly indicated on any claim form. We recommend all court
claim forms for possession which involve pre-action negotiation be
strengthened to require applicants to adduce evidence or include details as
to how they have engaged with the pre-action protocol requirement to work
with a tenant or borrower to resolve the issues giving rise to the prospect of
repossession.

3.32 One consultee we spoke to expressed concern that even if possession claimants
do glean significant information on a tenant’s circumstances, the current drafting
of court forms means that information does not necessarily make its way to the
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court. For example, though the defence form for tenants facing eviction from
rented premises asks about any event or circumstances which have led to being
in arrears, 194 it does not ask questions regarding any defences or considerations
under the European Convention on Human Rights (ECHR) or the Equality Act
195
2010, a particular issue for people coming to the court without having taken

Hitching, Pantazis and Parr, ‘The Exercise of Judicial Discretion in Rent Arrears Cases’ (London:
Department for Constitutional Affairs, Research Series 6/05, October 2005 available at
https://lemosandcrane.co.uk/resources/DCA%20-%20Exercise%20of%20judicial%20discretion.pdf
Bright and Whitehouse’s research suggests that this kind of allocation results in possession hearings
being allocated around 5 minutes each, Bright and Whitehouse note 166 above p. 43.

193 Bright and Whitehouse note 166 above Chapter 3.

194 Such as divorce, illness or bereavement, available at https://assets.publishing.service.gov.uk/govern
ment/uploads/system/uploads/attachment_data/file/688414/n11r-eng.pdf

195 There are movements towards ameliorating this issue, with the pre-action protocols being amended,
part 3 of the protocol was amended in January 2020, and now includes an amendment that reads “cases
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