Considering the Case for a Specialist Housing Court?

A Specialist Housing Court was first proposed a year ago, and the Ministry of Housing, Communities and Local Government (MHCLG) has now issued a “Call for Evidence”, which you can find here.

The response period closes on 22 January 2019, and we strongly urge all landlords to submit a response. The explanations that go with the questions are only short. 

It is not entirely clear what the Government is hoping to achieve as the questions are quite wide-ranging and pick up some fairly random issues.  The document states that the Government wants to explore “ways of reducing delays and improving the service for all users” who bring housing cases to the county courts and the First Tier Tribunal (Property Chamber) (FTT).

It also asks whether “a Specialist Housing Court could make it easier for all users…to resolve disputes, reduce delays and secure justice”.

There are four parts to the call for evidence:

• Part One covers the private landlord possession process and invites responses mainly from private landlords.
• Part Two addresses enforcing a possession order. Do note, however, the reference at paragraph 28 to the Court Service undertaking a “possession project”, which is due to start in 2019.  This includes “digitising the end to end service” for all claims.  It particularly promises that “the shorthold tenancy possession claim process will be made digital”.  This is good news – referring to the accelerated possession claim process, which is of course extensively used by landlords ending assured shorthold tenancies, (with the process often being anything but accelerated). Maybe an ACCPOL to go with PCOL?
• Part Three covers access to justice and the experience of court and tribunal users. It refers at paragraph 31 to a pilot project currently being conducted to arrange that “simultaneous determinations by one single Judge” are made in cases overlapping the county court and the FTT.  You can imagine the advantages this would have, for example, when trying to recover service charge arrears that involve starting a money judgment claim in the County Court, but if defended on the reasonableness or eligibility of the charge raised, then has to be transferred to the FTT.  Once a determination has been made that a certain amount is due, it then has to be transferred back to the County Court for enforcement to continue.  One judge being able to deal with all of it would certainly save time.

The questions in Part Three ask for your experience of what could be made better or easier in the Court processes. 

• How to improve access to justice?
• How satisfied are you with the average time taken to resolve the County Court cases you have experienced?(!)

Solicitors and landlords alike are all equally frustrated with the very extensive delays now being typically experienced, (e.g. call centres routinely advising there is a 35-day delay in processing orders and Courts advising they have a shortage of Bailiffs so to expect up to 13 weeks for eviction dates etc. being recent examples).

Now is your chance to give some hard evidence about some of the cases that you are dealing with.  Explain how much it is costing you in rent arrears, for example, and in resident dissatisfaction due to the delays in getting through the court process? 

• Part Four covers what you might expect a Specialist Housing Court proposal to focus on. This is the case for structural changes to the County Court and the FTT.  It is noteworthy that paragraph 33 states: “We want to explore whether housing cases could be resolved in a different forum more cheaply and with less formality”.

No doubt one of the key drivers behind this Call for Evidence and the Housing Court proposal is a desire to reduce costs.  Comments are sought on four options proposed, which are:

• Option 1 – Establish a new specialist housing court. Questions are to whether users think that would reduce costs, improve access to justice, create easier access for users and improve the timelines? What should the new court be able to cover? Both the County Court's and FTT's current cases?
• Option 2 – Move some cases from the County Court to the FTT or vice versa. Bear in mind there is no legal aid for tribunal cases presently, and the Document is silent on whether it might be extended to tribunals, so the impact on access to justice could be significant.
• Option 3 – Make changes to the enforcement process in the County Court. This sounds hopeful but is actually very limited in its scope (referring to the need to give more information to landlords about what they need to do to apply for a warrant, and what information landlords need about the eviction day etc.)
• Option 4 – No change. The do-nothing option.  Just improve user guidance.

We look forward to hearing the views of clients and delegates at our Annual Housing Management Law seminars in Birmingham on 20 November, Manchester on 27 November and London on 4 December. We will then collate and add your feedback to our response.  However, we strongly encourage all landlords to consider the paper carefully and put in their own response, as this opportunity is a rare one!