A recent report from JUSTICE’s Solving Housing Disputes working party proposes a new Housing Disputes Service. But is it a good idea or will it cause more problems than it claims to solve? Here we present arguments for (Andrea Coomber) and against (Sue James) the proposals.
Time to try something new?
Andrea Coomber puts the case for a Housing Disputes Service.
Introduction
JUSTICE has never shied away from radical recommendations to improve the justice system. The Crown Prosecution Service, the adoption of ombudsmen, the Criminal Cases Review Commission, the Criminal Injuries Compensation Authority and the Judicial Appointments Commission have all emerged from our work. We have never accepted the status quo is the best approach merely because it is the way things have always been done.
Our
Solving Housing Disputes working party, chaired by Andrew Arden QC, launched its report on 5 March 2020, with 40 recommendations to improve the current system. The report also considered a pilot project that would fundamentally change the way in which housing disputes are resolved.
The starting point for the work was the Ministry of Housing, Communities and Local Government’s (MHCLG’s) consultation,
Considering the case for a Housing Court: a call for evidence (13 November 2018; closed 22 January 2019), which invited us to consider whether there ought to be a sole jurisdiction hearing all housing disputes. For us, the court system did not necessarily provide the answer. In our 2019 working party report,
Understanding courts (25 January 2019), chaired by Sir Nicholas Blake, we explored the ways in which, in an era of austerity and legal aid cuts, the culture and practices of the court system alienate and marginalise ordinary people who come before it. Disputes in housing law are no exception.
In the context of 52 per cent of the population living without a single housing legal aid provider in their area
(see The Law Society's housing deserts map; more recent statistics from
Inside Housing suggest the position has worsened since then) and the government showing little appetite to reintroduce pre-austerity levels of legal aid, the majority of our working party thought it worth considering a new approach that sought longer tenancies, improved conditions and conciliatory, problem-solving methods in dispute resolution.
The Housing Disputes Service
The Housing Disputes Service (HDS) would encompass advice provision, dispute resolution and regulatory enforcement. It would take a multi-disciplinary, inquisitorial and holistic approach to housing disputes, helping to foster a new culture of dispute resolution in the sector. In order to maintain housing relationships and swiftly address problems, issues would be proactively identified, regulatory action – if needed – would be promptly taken, and the underlying motivations and interests of parties to housing relationships explored through mediation.
The HDS would be principle-based, grounded in the importance of housing to occupiers, the need to keep people in their homes, a broad interpretation of vulnerability (with training to identify it and adjustments to facilitate participation), a protective approach to respond to imbalances in power and the need for a viable market of lawyers specialising in housing, willing and able to take instructions on legal aid.
The HDS would take a tiered approach to dispute resolution:
•Stage 1: a proactive and investigative stage where the HDS assembles everything necessary to make a holistic assessment of the housing relationship (whether face to face, over the phone or digital, whatever works for participants). Participants would be interviewed and additional enquiries, whether through a seconded Department for Work and Pensions officer directed to reassess benefits or environmental health officers evaluating whether a property is regulator- and contract-compliant, would be made where needed.
•Stage 2: a preliminary written assessment of the relationship and what ought to follow from it by way of resolution.
•Stage 3: a non-lawyer, HDS-facilitated alternative dispute resolution (ADR) stage (using whichever ADR mechanism is appropriate), to broker a solution between the parties.
•Stage 4: if necessary, adjudication.
If a pilot is successful, we propose that the HDS become a mandatory first stage in housing dispute resolution. If the HDS cannot facilitate resolution, there would be an absolute right of appeal on fact or law to a court with housing expertise (ie, to a circuit judge or the Upper Tribunal).
The HDS would perform the front-end functions currently carried out by various ombudsmen, including developing policies and complaint-handling procedures with housing providers. In doing so, it would develop a ‘feedback loop’ with regulators to provide data to assist with targeted interventions to address systemic housing problems. Housing law is not merely dispute resolution: it includes regulation and enforcement of standards. The idea is to establish a one-stop shop.
Lawyers will be required to advise and negotiate with other prospective parties before deciding whether to refer a client to the HDS. Once in the HDS, lawyers will assist clients at stage 1 by responding to requests for information and/or correcting inaccurate information procured by the HDS (including from another party). At stage 2, they will receive and advise their clients – in writing or orally – on the initial, provisional assessment and on what their bottom-line entitlements are for the purposes of stage 3. If no satisfactory agreement is reached at stage 3, they will advise their clients on the stage 4 adjudication and represent them on appeal, armed with the full information secured by the HDS.
Many lawyers and advice workers in the sector already operate on a problem-solving, holistic basis, and so are well-equipped for the HDS model of dispute resolution. To facilitate advice throughout the process, and representation on appeal, we recommend a new legal aid contract for the HDS (which might bundle up debt, benefits and housing) and/or the establishment of an independent panel of lawyers to the HDS. These reforms would establish a national network of housing advice providers alongside the HDS.
The new system would need to be co-designed with the advice sector to ensure a sustainable funding model. In particular, the model would have to offset the lost cross-subsidy currently gained through costs in successful legal aid cases, which we understand is a vital source of income enabling many Law Centres to stay open.
Conclusion
We recommend an HDS pilot be evaluated against robust access to justice measures. One of the two pilot sites should be a housing advice desert, thereby representing an opportunity to reintroduce advice where none currently exists. Any pilot should be overseen by a housing disputes engagement group, chaired by a senior judge with representation from across the housing sector.
The HDS will need primary legislation and funding for the pilot. Thereafter, we propose it be funded by mandatory landlord subscription fees.
1Strengthening consumer redress in the housing market: summary of responses to the consultation and the government’s response (January 2019) from MHCLG evinces an intention for all private landlords to pay into a redress scheme. We propose the HDS consolidate all housing redress schemes into one place, in which case it would be funded by subscription from over 8m rented properties, which we propose finance an annual budget of in excess of £150m. Realistically, the HDS would take at least five years to pilot, a decade for evaluation, and possibly another decade before fully rolled out.
Upcoming Bangor University/Nuffield Foundation research has helpfully engaged with our proposal. The research is exploring devolved issues in social housing and homelessness in Wales and will suggest to the Welsh government that the HDS could adopt the problem-solving mentality that the
Commission on Justice in Wales recommended.
2Justice in Wales for the people of Wales, Commission on Justice in Wales, October 2019 – see chapters 4 and 7, which refer to problem-solving courts and methods. The researchers at Bangor University (funded by the Nuffield Foundation) observe that it could also foster the ‘
Five Ways of Working’ under the Well-being of Future Generations (Wales) Act 2015: thinking long-term; prevention; integration; collaboration; and involvement.
Many in the sector oppose even piloting the HDS. The assumption seems to be that court-based advocacy is the only way to guarantee justice for vulnerable people. But that simply isn’t true – ADR, ombudsmen, inquisitorial tribunals and Family Drug and Alcohol Courts all offer modifications on the traditional court-based approach and deliver justice for vulnerable people.
Most people in this country do not have adequate access to housing advice and dispute resolution. Regulatory enforcement and housing standards remain poor. The questions should be: does the current system deliver justice for ordinary people, and how much worse should things get before considering something new?
Radical or completely missing the point?
Sue James puts the case against the JUSTICE proposals.
Over the past 10 years, I have represented around 5,000 tenants in court; many more when I go back over my 30-year career. I think that safely defines me as a front-line advocate, a coalface lawyer. It was front-line advocates, coalface lawyers like me who were missing from the working party that came up with the idea of the HDS. It shows.
Imagine a dispute process that you access online – no judge, no lawyers, no substantive legal aid – then you pretty much have the HDS, a bit like the Legal Aid Agency’s (LAA’s) civil legal advice telephone gateway with the ombudsman thrown in. We said the gateway wouldn’t work; it wouldn’t provide access to justice. It didn’t. After seven years of not providing access to justice, it was finally removed on 15 May 2020.
I don’t intend to write in detail on why the HDS won’t work – others have already done that more comprehensively and eloquently than I can here. The Housing Law Practitioners Association’s (HLPA’s) dissent at annexure B to JUSTICE’s report (pages 126–141) is worth reading, as is Giles Peaker’s
Nearly Legal blog. What I want to do instead is try to get behind some of the misconceptions and misunderstanding that have fuelled its recommendations.
Adversarial lawyers
The report makes much of adversarial lawyers. Having spent the past seven years as a duty adviser, representing tenants weekly in the County Court at Brentford, the description of the lawyers in the report isn’t one I recognise. And I don’t think most legal aid lawyers – in any area of law – would either. We don’t fight over cases, we forge solutions. Where we can, we improve the relationship between tenant and landlord. As I move from one case to another, I often leave the parties swapping numbers, agreeing to do follow-up calls and arrange in-house benefit appointments.
By the time I meet my client in court, the parties are already engaged in a dispute usually started by the landlord, usually about rent arrears, usually caused by a welfare benefit problem. The only ‘fight’ I may have with the landlord will be over buying more time for the benefit matter to be resolved, for the income of the tenant to improve. Hardly the ‘aggressive approach not uncommonly taken in housing cases’ that Andrew Arden QC suggests was ‘a major stimulus for the HDS proposal’ (para 10 of his response to HLPA’s dissent, page 146).
And, as Giles Peaker writes:
Housing law is antagonistic not because of the attitudes of lawyers … but because the current reality of the landlord-tenant relationship, or the council-homeless applicant relationship, is fundamentally antagonistic. This is a simple matter of economic reality and the structure of power relations.
Taking lawyers away from possession cases will disproportionately impact on those most vulnerable. In analysis carried out on duty scheme clients in 2018 (see
R (Law Centres Federation Limited (t/a Law Centres Network)) v Lord Chancellor [2018] EWHC 1588 (Admin); September 2018
Legal Action 42), more than 31 per cent were found to have a mental health condition or a physical disability. The report overlooks the crucial role the duty solicitor plays in possession cases. The reality of the present-day county court hearing isn’t that two lawyers are pitted against each other, but that the tenant is represented by a duty solicitor and an income officer represents the local authority or social landlord. The income officer – an employee – prepares the papers for court in advance and will have a huge department and resources at their disposal. Income officers will still be present in the HDS, acting for their employer – not much will change for the landlord – whereas taking away the legal aid solicitor from the client will be a huge shift. It will impact severely on those who have the least. It will exacerbate the inequality that already exists.
The current system
The HDS is built on the premise that access to legal advice would be at stage 1 – what we call early advice. This early advice on housing matters is currently available if you are losing your home or you are homeless. Generally, tenants don’t seek this advice before they get to court. This can be for a variety of reasons, not least because there just aren’t any housing lawyers left in vast swathes of the country. The HDS would not create more housing lawyers. It would do the opposite. Legal help is poorly paid and over-regulated by the LAA. It would not be sustainable for either private practice or Law Centres to only provide this type of advice. The model only survives as an addendum to legal aid and is not viable on its own.
Perversely, the HDS relies on the shortage of legal aid housing lawyers to justify the introduction of the scheme, but then offers them up ‘to facilitate advice throughout the process’. The report makes no suggestion as to how these lawyers will magically appear. And the HDS becomes even less likely as a viable option going forward when the scheme itself will lead to our demise.
Holistic?
I have spent a lot of time, and travel, researching holistic advice. I received a Travelling Fellowship from the Winston Churchill Memorial Trust to fund my research and spent six weeks of last year in Australia and Canada. I am not averse to new ways of working. I was looking for possible solutions to the crisis that I was finding my clients in. What I found was that lawyers were essential for making change for those most vulnerable. Legal aid lawyers, or social justice lawyers, were part of multi-disciplinary teams and partnerships addressing all the needs of the client, legal and non-legal.
The description of the HDS as holistic isn’t one that I recognise. The report uses the word often, but it has no real meaning. It isn’t holistic to suggest a new legal aid contract ‘which might bundle up debt, benefits and housing’ (in any event, that was tried before by the LAA along with CLANS, which also didn’t work). It is here again that the report shows its naivety, but also where the HDS misses the point completely, as it fails to address the drivers that push cases into court and the complexity of people’s problems. The majority of housing cases don’t start out that way, but as health issues, benefit, employment or family matters. What needs to be funded is a way of resolving these issues upstream before they get to court, before they get to the proposed HDS. Law Centres know what is needed and are already doing this – the issue is how we secure sustainable funding.
Adequately resourced?
When I
interviewed Andrew Arden QC for my ‘At the bar’ series in
Legal Action in December 2018, I asked him what he thought about court reform. His view then was that the administration of justice had been sidelined, marginalised and under-resourced. It is therefore difficult to understand why he thinks this government would do anything different with the HDS.
Let’s look at what has happened to a couple of the other organisations Andrea Coomber states have emerged from the work of JUSTICE: the Crown Prosecution Service and the Criminal Cases Review Commission. Whatever the original ‘radical’ recommendation was, neither is now adequately funded. Matt Foot, a solicitor at Birnberg Peirce and a specialist in miscarriages of justice, tells me: ‘The CCRC lacks the commitment and ethos required to deal with the miscarriages of justice cases within the criminal justice system. This is reflected in the pitiful number of cases that have been referred to the Court of Appeal in recent years.’ Rhona Friedman, a criminal defence solicitor for Commons, says: ‘There are long delays and variable decision-making by the CCRC, caused no doubt in part by the huge resource issues faced.’ It is inevitable the HDS would go the same way.
Social progress
If we look to the 1970s, we can see how a progressive society used the developing law to make change for social good. Along with the Equal Pay Act 1970 and the Sex Discrimination Act 1975, we also had a huge movement against poor housing and the promotion of tenants’ rights, which resulted in the Rent Act 1977 and the Protection from Eviction Act of the same year. Legislation, combined with the means to enforce it through legal aid, meant that society progressed and rights were recognised. Law was used as a tool for social change.
It is hard to see how any of this could or would have happened with a dispute resolution scheme, and cases that challenged the status quo would not have been taken forward. When Russell Conway took the
Godin-Mendoza case,
3Ghaidan v Godin-Mendoza [2004] UKHL 30; August 2004 Legal Action 32. he challenged the lawfulness of a landlord refusing to recognise same-sex succession. It was pioneering. Society was changing. It was right that he won. I pose the question: could he have achieved such progress with alternative dispute resolution?
JUSTICE misunderstands the objections to the HDS, and they come not from ‘many’, but pretty much all housing lawyers. Social care has all but disappeared and structural inequality is growing. The present pandemic has highlighted this more than ever. The HDS is not going to bring change for our clients. It needs something bigger and bolder than that, something that can get to the root causes of the inequality before people get to crisis point. The HDS is not a ‘radical recommendation’; it is, in fact, more of a kitten than a lion – and just another gateway that our clients won’t be able to open.
What do other housing lawyers think of the HDS?
I wanted this response to incorporate a number of voices on the HDS proposal, not just mine, so I asked a variety of practitioners what they thought.
Nic Madge, co-founder of HLPA, former housing solicitor, district judge and circuit judge:
I have a number of concerns, but, perhaps most, I worry that, given the political realities of these times, if the government were to introduce an HDS, there is no chance that it would be adequately resourced. Realistically, the most likely outcome would be an HDS with too few staff or resources to provide the proposed advice, assistance or enforcement to those who need it. The suggestion that the HDS could provide that kind of help would just be smoke and mirrors, concealing the inequality between those who can afford legal advice and those who cannot.
Simon Mullings, current co-chair of HLPA and senior caseworker, Edwards Duthie Shamash:
Housing law advisers on the front line are frankly astonished at the naivety of the proposal. The HDS is not a discrete proposal that could be piloted to see if it works as JUSTICE suggests. The actuality is that, as the proposal itself recognises, in order to mitigate the internal problems of the HDS, a large-scale extension of legal advice and assistance is required. HLPA would, of course, welcome that. But government is not going to fund an entirely new tribunal system and adequate advice and assistance provision throughout the country. Instead JUSTICE’s proposal would be raked over for costs savings and we would be left with the worst elements of the scheme.
Will Ford, housing solicitor, Osbornes:
The main problem appears to be the assumptions that lie behind the report. The report assumes that removing lawyers from the system of resolving housing disputes will mean that disputes are resolved in a less antagonistic way. This fundamentally misunderstands the fact that most housing disputes are antagonistic by their nature, not because of the lawyers. The environment in which housing lawyers practise (where there have been seismic changes to the social security system, slashed local authority budgets, and an increase in unscrupulous private sector landlords) is one where unlawful decision-making is rife. Such decisions require robust challenge. For rights to mean anything, there has to be an effective mechanism of enforcing them.
Jeinsen Lam, housing solicitor, South West London Law Centres:
At its heart, the HDS is based on numerous flawed judgements about the role of legal aid lawyers and the drawbacks of the adversarial court system. Without addressing the policy drivers that lead to more evictions and poor homelessness decisions, the demand for advice will continue to increase.
Additionally, it is hard to see how such an ambitious scheme could be properly funded when the MoJ budget has been cut by over 40 per cent in the past 10 years. Politically, legally and financially, the HDS appears completely unworkable.
No one would claim that the county court and legal aid system is perfect, nor that some reforms would be unwelcome; however, limiting access to professional representation is the fast way to deny justice to those who need it the most.