Joanne Young, Legal Director in the Property Litigation Team at leading law firm Ashfords LLP discusses the benefits a specialist Housing Court could offer.
The creation of a specialist Housing Court is something that has been discussed for some time and for a long time, it has been pushed down the agenda. However, it has again come into focus, with the Government very recently publishing its “Call for Evidence” consultation document on the issue.
There are, of course, already some “specialist courts” dedicated to dealing with everything from employment to construction, insolvency to family law issues. There is also already in existence the Property Tribunal, which has jurisdiction for hearing a range of disputes concerning property, including leasehold property issues.
Is there a need to add a ‘Housing Court’ to this list? On balance I believe yes, there is.
The “Call for Evidence” highlights that an average accelerated possession case involving a private rented tenancy takes 16.1 weeks from issue to bailiff eviction and that an average possession case (which will incorporate all types of possession claim) takes 43 weeks. That is an average. True, there are cases that are progressed more quickly including cases that are concluded at a first hearing. But there are both accelerated and standard possession cases that take substantially longer to conclude. The figures quoted in the consultation document also relate to the period once proceedings are issued; for a private landlord seeking accelerated possession, a 2-month notice must first be given – and so the possession process will take 6 months on average. For a private landlord with just one property (the majority of private landlords, as is emphasised in the Call for Evidence), this delay can have a significant impact. For a neighbour living next to a tenant engaging in antisocial behaviour, every day of delay can be another day of misery. In the early days of the Blairite Government, there was a push to ask the Courts to deal with Anti-Social Behaviour (ASB) cases as a matter of priority; if this approach is still in theory being adopted by the Courts, it certainly does not appear to make any practical difference in our experience. Even with the most robust of handling ASB possession, cases can easily take more than a year to conclude.
It is true that the current delays in the system could be resolved by investing in the existing County Court structure; by investing in more administrative staff and Judges and in reversing the current program of Court closures but this is unlikely to happen.
However, the focus should not just be on remedying the administrative delays. Housing law is increasingly complicated. To adjudicate properly, a Judge has to know everything from the finer-workings of the benefits system to mental health, human rights to the technicalities of home insulation – all issues that regularly sit alongside the statute, regulations and case law that form the basis of “housing law”. Without expert knowledge, Judges, (understandably), cannot feel confident enough to take a robust hold of cases – which inevitably leads to more delay.
Support for a housing court is not universal; some practitioners are ambivalent, others are robustly opposed. There are practical concerns about how such a Court system would work, particularly given the need to keep justice local and to ensure tenants can have easy access; would there be a geographical spread of specialist courts to ensure this can be done? There are also those who argue that housing law should not be treated as a “bubble” and in isolation from other areas, and that housing decisions need to be taken by Judges who have a wider field of knowledge. These concerns are valid. But I believe that the vast majority of housing law possession cases are focused on housing law issues. Well trained Judges should be capable of using their experience and common sense to seek assistance when needed if wider concerns do come into play.
Anyone involved in housing law cases cannot doubt that the current system needs changing. But this has to be carefully carried out. The “need for speed” should not be seen as equating to summary justice, or in any way lead to a dumbing down of housing cases. The law is complicated. Barring the making of a care order, there is not much else that is more serious for a Judge to do than to make an Order which evicts an individual and their family from their homes. There is no need to simplify the process, as is suggested in the Call for Evidence. For all concerned, it is entirely right and proper that due process is followed and that there is a proper, legal investigation into any housing related case. Evicting a tenant should not be seen as a tick box exercise, as simple for a landlord as buying a pint of milk or taking out bins.
Renting is on the increase and this will continue. Issues regarding those tenancies will therefore also increase. A specialist housing court will ensure that the justice system is fit to deal with cases in the future.
The consultation closes on 22 January 2019. I, for one, will be keeping a very close eye on the outcome.