WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
December 03 2020
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Housing lawyers call reform proposals ‘fundamentally misconceived’

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Housing lawyers call reform proposals ‘fundamentally misconceived’

Justice in a time of austerity: a Justice Gap series

Lawyers have damned proposals for radical reform of the housing courts as ‘fundamentally misconceived’, ‘wrong in principle and unworkable in practice’ and without any support from the profession.

Last week, the law reform group JUSTICE launched the report of a working party chaired by Andrew Arden QC calling for reform of the courts and the introduction of a unified dispute service.

The proposals prompted a furiously worded dissenting opinion from the main representative body in the sector, the Housing Law Practitioners Association (HLPA).

‘In summary we consider that the HDS (housing dispute service) is fundamentally misconceived proposition which is wrong in principle and unworkable in practice,’ the HLPA says. ‘To the best of our knowledge, it is not supported by a single tenant/homeless persons solicitors’ firm, organisation, charity, or law centre. It does not understand or reflect the realities of representing vulnerable people with housing problems. It fails to grapple with the inherent imbalance of power in the landlord/tenant and local authority/homeless person relationship.’

The group goes on to argue that the proposals would most likely be in breach of the European convention on human rights, article 6 (the right to a fair trial). ‘It represents not a leveling of the playing field but a race to the bottom, it added.

Arden, who has been described by the legal directory Chambers & Partners as ‘the godfather of housing law’, has said that he believes ‘passionately that only something like the HDS can actually alleviate the strain of disputes with their landlords for tenants, promise something more hopeful to the homeless and advance housing conditions through a wider consensus’.

Between October and  December 2018 there were 28,790 landlord possession claims and 5,648 mortgage possession claims. Homelessness has risen by 165% by 2010 and all of this has to be seen against the background of austerity and cuts to legal aid. This had led to a lack of coherence and clarity in housing disputes.

The JUSTICE report argues there is a not enough available early legal advice, that there are too many points of entry for a potential dispute and the tribunal system is too complicated making it difficult to navigate for a lay person. At the moment, parties to a dispute are not seeing a lawyer until their house is about to be taken away from them. It claims that access to early legal advice and a focus on ADR would circumnavigate this problem and that the HDS is the best way to do this.

The report culminates in 54 recommendations, set out in two main parts. Part one focuses on the HDS and the way in which this would work in practice. It’s described by JUSTICE as being able to ‘fuse elements of problem-solving, investigative, holistic and meditative models utilised elsewhere in the justice system’. The working party envisages the HDS being a national service, funded by subscriptions from housing providers. It would not be a court or a tribunal, there would be no lawyers or hearings but rather it would set out all the circumstances looking to investigate the case and find solutions to the underlying problems.

Part two of the report focuses on ways to improve the current system, whether HDS is introduced or not. These proposals focus on promoting early access to legal help and changing the way local authorities deal with homelessness, giving the homeless early access to advice. The report proposes more accessible court and tribunal structures with a single point of entry for all types of housing disputes. This is in order to avoid the current position where disputes with the same set of facts can be heard in the First-Tier Tribunal and the County Court simultaneously. Once proceedings have begun the recommendations from the report are mostly to encourage ADR pre-action and throughout proceedings.

The HLPA argue that it it is ‘clear’ that HDS would largely be ‘lawyer-free zone’ with any legal input being ‘advisory’ and coming from members of a legal panel. ‘In our view, given the reluctance to provide public funding for lawyers in the system as it exists, it is wholly unrealistic to suggest that there could be the political will to pay for lawyers where lawyers play only an ‘advisory role. To go further and suggest that they may be paid more than under the current system is fanciful.’

The full report is published on the JUSTICE website (here).