Some policy ideas have a habit of re-emerging from time to time. Whether they get taken up or not is mainly down to a combination of politics and cash. The Ministry of Housing, Communities and Local Government (MHCLG) has resurrected such an old policy chestnut in its consultation document published last month, Considering the case for a housing court: a call for evidence (13 November 2018; consultation closes on 22 January 2019).

Over the years, housing law luminaries, including LAG authors Andrew Arden QC and Nic Madge, have floated the idea of a specialist housing court. Most housing lawyers, when asked, will say it’s a good idea in principle, as a specialist court would improve the consistency of decision-making and be more efficient. When asked by LAG for their view on this latest proposal, though, one highly regarded housing lawyer described it as ‘kowtowing to landlords’ by the government.

Ten years ago, the then Labour government asked the Law Commission (LC) to look at reforming the law around housing disputes. In its final report (Housing: proportionate dispute resolution, LC 309/Cm 7377, 13 May 2008), the LC weighed up the arguments for and against a specialist tribunal. A prominent supporter of the idea was the housing charity Shelter, which argued that provided the then current level of legal aid remained to fund housing cases, a specialist tribunal was ‘justified by the fundamental importance of housing to the health and welfare of individuals and to society as a whole’ (page 72, para 5.12).

According to the LC, there was however ‘significant hostility’ (page 77, para 5.29) to its proposal for a specialist housing tribunal. The Association of District Judges said its position could be ‘summarised as one of complete opposition’. It suggested that judges with expertise in housing law should be ‘ticketed’ so that complex cases could be referred to them. The Civil Justice Council argued the exact opposite of Shelter, stating that the effect of a person losing their home was so serious that ‘the authority of a court is required to sanction a possession order or provide an appropriate remedy’ (page 78, para 5.31) – a rather pompous argument given the tribunal system can decide on such important matters as whether a family should be deported or whether a person has been sexually harassed in the workplace.

The LC seemed to favour the transfer of housing matters to the First-tier Tribunal (Property Chamber) or other tribunal, arguing that the experience in other jurisdictions ‘suggests that a shift to a more specialised tribunal can result in the benefits of greater efficiency, lower cost to the user, and more access to justice’ (page 81, para 5.47). Its final recommendation on this, though, was a bit of a fudge as it did not come down decisively on either side of the argument, saying that ‘while the creation of a more specialist jurisdiction might remain a long-term goal, any progress towards that goal should be measured and tested’ (page 80, para 5.43).

In the introduction to the current consultation paper, the MHCLG states that the number of private rented sector households has doubled to 4.7m since 1996/97 and they now make up 20 per cent of the total households in England. It goes on to list the various measures recently introduced, such as the database of rogue landlords, to control the activities of landlords in the sector. This perhaps gives a clue to the politics behind the decision to publish it.

Groups representing landlords complain of excessive regulation by the government. They also believe they are ill-served by the present court system due to delays in getting tenants evicted when they fall into arrears. While there may well be examples of difficult tenants using delaying tactics to string out their stay in a property, the landlords’ lobby’s assertion that a dedicated housing court is needed to speed up evictions is not supported by the statistical evidence. The consultation paper observes that the headline rate of 43 weeks on average for possession claims is in fact much lower for most private landlords. The latest statistics on possession cases also confirm the long-term downward trend in landlord repossessions (Mortgage and landlord possession statistics in England and Wales, July to September 2018 (provisional), National Statistics, 8 November 2018). This suggests that either landlords have stopped using the courts due to delays or, more likely, the overall picture in the market is that fewer tenants are getting into arrears that then lead to landlords having to resort to court action.

In welcoming housing court proposals, the pro-landlord lobby has argued that this will lead to landlords offering longer tenancies as they will have the security of being able to evict tenants more quickly (see, for example, David Smith, ‘We need a housing court’, Law Society Gazette, 26 February 2018). We would argue the government has to reform the law on tenancy, including the abolition of assured shorthold tenancies, and reintroduce a system of rent controls if it is going to tackle the problems in the private rental sector, rather than skewing the legal system further in favour of landlords. Unfortunately, there seems to be little political will to do this, but the current proposal, in all probability, is still going to flounder. The housing court idea is again likely to meet the sort of vehement opposition discussed above. Also, cash will trump politics as, at a time when the Ministry of Justice needs to find a further £300m in cuts, the county courts can ill afford to forgo over £50m in income from fees for issuing possession claims as well as finding the costs associated with establishing the new court.