Hannah Lennox on what she has learnt in her first five months on the front line of possession proceedings.
As duty advisers, we are often compared to triage workers in hospitals or first responders arriving at an incident: our job is to do our best, in a short amount of time, to assist someone to deal with what may be a life-changing event. We take as many resources with us as we can reasonably use in that short amount of time, but nobody expects us to have the encyclopaedia that is LAG’s Defending possession proceedings
memorised.1The ninth edition, by HHJ Jan Luba QC, Ann Bevington, John Gallagher, Sam Madge-Wyld and Sarah Steinhardt, will be published in December 2021 and is available for pre-order. Housing Possession Duty Desk – a practical guide
(Simon Mullings and Sue James, LAG, March 2020) is a torchlight that I encourage all duty advisers to include in their duty day toolkit.
There are some other crucial things to note, too:
•Be friendly to the usher – they influence when cases are called into court and so can be your ally if you have a last-minute arrival or need extra time to take instructions.
•The first task of the day is to check the list – this will tell you what type(s) of claimant you will be dealing with (and therefore possibly the type of tenancy/grounds you are likely to be defending).
•Remember, no two duty days will ever be the same – expect the unexpected but come up with a system for getting to the crucial information that works for you.
Undoubtedly, most possession proceedings I have dealt with have arisen from rent arrears. Landlords usually allow six months’ arrears to accrue before commencing proceedings so that they can rely on Ground 8, as well as Grounds 10 and 11, of Sch 2 to the Housing Act 1988. This is a difficult position for the defendants to respond to but it simplifies your job as a duty adviser. Keep the following in mind:
•Focus on checking that the procedural requirements have been carried out properly, that there is no dispute as to fact (the amount of rent arrears), whether there is any defence (most commonly, disrepair) and whether there is any exceptional hardship.
•Clients rarely turn up with the documents you need, so talking to the claimant’s representative is usually a good idea – they should be able to tell you what their case and their current position are.
•In some cases, you can reach an agreement with the claimant at the door of court – never be afraid to ask (the worst they can do is say no) as this can save you time and your client a lot of stress. It may also provide a more favourable outcome than from the judge.
The bigger picture
Reflecting on the rent arrears cases I have seen, I realise that people quite often accrue arrears through no fault of their own. Job losses and benefit rule changes frequently reduce people’s income. In an extortionate private rental sector, it is very difficult for individuals and families to find suitable affordable accommodation. I had previously read reports and articles about the ‘housing crisis’; however, being a duty adviser really contextualises the day-to-day impact this has on not only the most vulnerable people in our society, but also those who are struggling to maintain a basic standard of living.
With little free legal advice accessible to resolve benefit issues and legal aid only available in limited cases where there is disrepair, many individuals I have met have been unable to address their housing problems before they reach the door of court.
With little free legal advice accessible to resolve benefit issues and legal aid only available in limited cases where there is disrepair, many individuals I have met on duty have been unable to address their housing problems before they reach the door of court. This has been exacerbated not only by the economic impact of the pandemic, but also by the long-running history of government policy-making that has stripped legal aid to the bare bones and financially crippled individuals who have been unfortunate enough to lose their job or otherwise require welfare benefits.
Duty day results
You will always learn something new on duty, as experienced duty advisers mentoring me through my rookie days have told me. This provides some reassurance that I may be relatively inexperienced, but no one ever knows everything. One of the most valuable lessons I have learnt is that there may be a QC on the other side, but they can only be as good as their case!
The aspect of duty advice that has surprised me the most is defendants’ engagement in the proceedings and reactions to possession orders being made. On at least two occasions, I have become concerned about my client’s well-being during a hearing as their breathing became audibly more laboured. Even if a defendant appears to be coping, remember:
•Most defendants do not understand what has happened during the hearing. Therefore, the advice given immediately afterwards is as important, if not more so, than that given beforehand.
On several occasions, I have been concerned for my client’s welfare once they have left the court building – and these are the clients for whom I take a few extra minutes to add a few lines into their advice letter about mental health support services in their local area. However, to my surprise, I have not yet had a client cry. And so I have realised:
•Defendants are usually very realistic about the likely outcome of the possession hearing.
The biggest outward display of emotion I have observed was from a client who expected to lose their home, but a defence was possible so directions were given. They were by no means ‘home and dry’ but there is a big sense of relief for most people when they get a few more weeks in their abode. Which brings me to the most important thing:
•Duty advisers make a huge difference, even if all they do is help a defendant understand what is happening.
My favourite case so far remains the highest-stakes hearing I have had. My client had applied to suspend a warrant. If she did not succeed at this hearing, she would be evicted without further recourse to the court. However, it was the background to the case that made getting the warrant suspended so important. The client was elderly and had long-term health conditions. She had lived in the property for 28 years and with one of her granddaughters for more than 20 years. A possession order on discretionary rent arrears grounds was made in 2014 at a hearing that the client could not attend due to mental ill health.
By October 2020, she had significantly reduced the rent arrears; however, the effects of the pandemic then caught up with her and they began to accrue again. A warrant was obtained in April 2021 at a hearing that, once again, the client was unable to attend due to her mental ill health. In August, I represented her and requested the warrant be suspended to allow time for her to apply for a discretionary housing payment and address benefit issues that had arisen. The court suspended the warrant, referring to the lack of prejudice to the social landlord claimant in the grand scheme of a tenancy that was almost 30 years old. The best you can do on duty is save someone’s home and, at least for the time being, I did that.