Page 86 - Solving Housing Disputes

notwithstanding that this limits the capacity of judges to actively manage cases
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justly and at proportionate cost in accordance with the overriding objective.
In light of Lomax, court or tribunal based mediation or other forms of ADR such
as ENE are no fetter on access to the courts, because it remains open to parties
to choose not to be bound by the mediated outcome or early evaluation and seek
a judicial determination of their rights through the judicial determination. 239

3.55 We recommend that ADR be more strongly encouraged by amending the
procedural rules which apply to the current housing disputes system. Rules
committees for the civil courts and First-tier Tribunal ought to consider
how the rules could more strongly favour a presumption of or direction to
ADR before any formal, adjudicative process takes place. If those rules
change, tribunal and court case workers and/or judges should be able to
direct parties to engage in all forms of ADR, including in circumstances
where parties do not consent.

Homelessness
Introduction

3.56 The duty to assist those facing homelessness is one of the fundamental activities
carried out by local authorities in England and Wales. Homelessness has risen in
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England and Wales by 165% since 2010 and local authorities owe
241
homelessness obligations against a backdrop of diminishing resources.

237 Briggs LJ in PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 held that the economic virtues of
ADR furthered the principle of proportionality in civil disputes by assisting the parties and the court to
manage its finite resources. See also Ahmed and Arslan, ‘Compelling parties to judicial early neutral
evaluation but a missed opportunity for mediation: Lomax v Lomax [2019] EWCA Civ 1467’, C.J.Q.
2020, 39(1), 1-11, 5.

238 Ibid Ahmed p. 5.

239 Ibid p. 6.

240 See Ministry of Housing, Communities and Local Government, Rough Sleeping Statistics Autumn
2018, England (Revised), available at https://assets.publishing.service.gov.uk/government/uploads/syst
em/uploads/attachment_data/file/781567/Rough_Sleeping_Statistics_2018_release.pdf and Rough
Sleeping Statistics Autumn 2017, England (Revised), available at https://assets.publishing.service.gov.u
k/government/uploads/system/uploads/attachment_data/file/682001/Rough_Sleeping_Autumn_2017_S
tatistical_Release_-_revised.pdf

241 Between April and June 2018, 58,660 households were assessed as being owed a new statutory
homelessness prevention duty by English local authorities, Statutory Homeless, April to June (Q2) 2018:
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