Jobs and Homes
Stories of the law in lockdown
In an excerpt from David Renton’s new memoir for LAG, we find him and his clients in June 2020, preparing for the first of the lockdowns to end.
Save for my injunction cases, there were very few other hearings in the lockdown. In Central London Employment Tribunal, all hearings were converted to case management hearings by telephone. ‘Do I have the claimant on the phone?’ the judge asked. ‘Bear with me, I am going to try the respondent again.’ When the hearing began, she said, ‘I am working from home remotely. I have some paper documents, but if you’re expecting me to have the full paper file for the case, I don’t.’ Every lawyer I met invited judges to keep trials listed whenever they could. When it was not possible to do so, they were adjourned into the distance.
At a hearing in June, one judge at an out-of-London employment tribunal told me that my client’s relatively straightforward unfair dismissal case (four witnesses, around 300 pages of documents) could not be heard until spring 2021. Between now and then, every date was already taken.
In housing, meanwhile, all claims were stayed. Only a very few housing cases, principally injunctions, trickled through the system. The County Court at Clerkenwell and Shoreditch wrote to legal aid solicitors and large landlords. ‘Our staff will need to generate revised notices to accompany court papers’, and these papers would need to explain ‘that there will almost certainly be no “duty solicitor” scheme in operation’. Solicitors worked urgently to gather the evidence to show the difference that the duty scheme had made, and to urge the court to reconsider. In the last 12 months before the lockdown began in March 2020, duty solicitors from one Law Centre represented tenants in over 700 possession hearings at Clerkenwell and Shoreditch. In only 11 per cent of these cases was an outright possession order made.1Arkin v Marshall  EWCA Civ 620; June 2020 Legal Action 44, Housing Law Practitioners Association evidence.
Without a duty scheme, they argued, you would expect that proportion to be closer to 50 per cent. Without the scheme, hundreds of people who had saved their homes would have lost them.
The listings I was given were often ineffective. One Tuesday at 11 am, my clerk took a call from a desperate solicitor at a Law Centre. A case had been listed at 2 pm, the final hearing of a possession claim – could anyone in chambers cover it? In theory I was the best person, I had spoken to the solicitor before the previous hearing, and some of the case papers had been sent to me. More documents had come in but were now lost in the Law Centre’s files. The solicitor was working from home with only a desktop printer, as was I.
I had just three hours to prepare for the hearing. No one had warned the client. We had not had disclosure from the landlord – of the half-dozen procedural steps that were supposed to be taken to make us ready for a trial, none had been taken. The judge was going to be livid with the landlord and equally annoyed with us.
For two-and-a-half hours, the solicitor and I wracked our brains trying to work out why the judge thought a possession trial could go ahead when all such cases were stayed. I remembered an email from the landlord saying they were planning to sell the house: was that the explanation? We had heard from the judge’s administrator who said she had seen an order but could not remember what it said. ‘I’ll email it you,’ she promised, ‘I’ll do it now.’
Trying our hardest to keep calm, the solicitor and I made a written application to adjourn the hearing. At last, the solicitor received an answer. The judge had not meant to say the hearing should go ahead. Quite the opposite, they had vacated the hearing. The administrator misspoke, she had not read the order properly before telling us about it.
The final stage of qualification to become a barrister – ‘pupillage’ – lasts for roughly a year. Twenty or 30 years ago, the near-universal model was that all chambers would begin the year with five or six pupils. At the end of the year, one and one only would be recruited as a ‘tenant’, that is, an ordinary member of chambers. Since that time, the number of pupils has remained constant – at about 500 people per year across the UK, or, roughly speaking, one place for every 30 applications. Pupillage is much the same as it was three decades ago: a year-long job interview, with security for those taken on and nothing for the rest.
I remember what it was like to be living in central London and to be paying for a mortgage when my children were aged five and one. I recall that awful uncertainty as to whether or where I would be working in a year’s time.
That powerlessness made me dependent on the people above me, the hundred or so members of my chambers who might be involved in the recruitment decision. I looked at them in awe, as if they were gods of my future working life – when they were people from similar backgrounds to me, with similar working lives and similar opinions. I was desperate to be taken on. Even after the simplest interactions I would find myself asking, did I speak too loudly to one barrister, or too softly? Did I come over as informed or needy?
I remember the feeling when, thank goodness, the meeting of chambers took place and voted to accept me as a tenant. A dear friend from the Haldane Society of Socialist Lawyers rang and gave me the news. I was swimming with my partner and our children at the Holloway swimming pool, with its sloping beach and water slides.
I wept to hear I had been taken on. I was 36 years old, and for the first time in my life I had both a career that I wanted and a permanent contract.
In June 2020, I was asked to represent a tenant, Ashwin, at a telephone hearing. Ashwin’s private landlord had evicted him from his home without a court order (in other words, unlawfully) and since then he had been living in a hostel for 16 months, in a dirtier, smaller single room, rather than the tolerable one-bed flat he used to occupy.
Ashwin was evicted without warning; a letter was shoved through the letterbox on the same day his locks were changed. The landlord lost my client’s bed and his TV set. He broke the door of Ashwin’s fridge, bagged his suits up and dumped them in a garage where snails crawled over them. The letting agent even demanded a £320 fee for keeping the few of Ashwin’s things they managed to put into storage.
The difficulty Ashwin faced and the reason for the hearing was that the landlord had brought his own counterclaim for damages, £10,000 for scuff marks on the floor, and my client’s solicitor had failed to put in a defence to the landlord’s claim, with a result that there was an order (‘default judgment’) that Ashwin had to pay the £10,000 sum in full.
Our hearing was due to start at 10 am, but the hearing could not begin on time. The defendant’s solicitor’s phone was not answering. Then the court was unwilling to add the claimant to the call. Wasn’t it enough that I was there – his barrister?
‘It’s not enough,’ I insisted.
Finally, the hearing was ready to start. I asked the judge, ‘Do you have the case papers?’ He did not. I emailed the papers, and the parties hung up while he read them.
The defendant’s solicitor was missing when we tried again, while his answerphone was playing some sub-Dire Straits guitar solo.
The usher asked, ‘Do I have the district judge on the line?’
We began the hearing over an hour late. I told the judge that the order for default judgment had been wrongly made. After that, we had one of those arguments you often get in the county court, with my opponent (a solicitor, who qualified in the same year I was called to the bar) dredging up the name of High Court cases which no one else had read and the rest of us having to search online for them.
I took the judge to a few more recent cases; I showed him that my opponent’s memory of the Civil Procedure Rules was several years out of date.
The judge started saying, ‘I agree with Mr Renton,’ and then with more force, ‘I’m sure he’s right about this. Really.’
My opponent conceded the point, saying, ‘I can see what Mr Renton is saying now – now he’s explained it to me. If I knew, I am not sure I would have fought.’ This was gratifying, as far as it went. But my client was still in temporary accommodation. Even with the order for default judgment set aside, he was still having to argue for the court to bring forward the hearing – the next hearing – which would decide whether he could get back into his home.
The judge told us that the delays caused by the lockdown were so bad, that if we asked for a one-day hearing, the case would not be listed before autumn 2021.
I spoke to my client afterwards.
‘The judge wasn’t serious, was he?’ asked Ashwin. ‘I’m sorry – he was.’
‘Another year?’ he groaned.
There was light enough to play football with my son after supper. Whenever we left the house, whether to shop or to exercise, we washed our hands: once, as we left, and a second time when we returned. The skin cracked beneath my son’s fingers.
The days were hot – painfully so. The air thickened as cars slowly returned to the roads. When I did my shopping, I kept to the shade.
I talked to friends by Skype – doubtfully, disbelievingly, we plotted what we would do when ‘normal life’ returned.
I telephoned my father. He told me that he and I had spoken already that morning (we hadn’t). Was he remembering a dream?
‘Come and visit,’ he said – but the rules of the care home were perfectly clear. I was not a member of his household – I was still not permitted to see him.
In my first hearing in June, I represented a chef, Andrew, who had worked in the London Mayor’s office where he became ill. He was diagnosed at first with depression and later with chronic fatigue syndrome. His employer’s Health and Wellbeing Service recommended that he be redeployed to a desk-based, administrative role. His managers refused to accept this advice and insisted that any redeployment must take place through interview. Andrew attended a dozen such interviews without being offered a post. In the week leading up to the telephone hearing, a week in which casualties from coronavirus increased faster than at any other time in the crisis, the employer wrote to the tribunal insisting that the hearing went ahead.
The employer told the tribunal that Andrew was unrepresented, explained that his case raised a complex issue of law (namely: what was the provision, criterion or practice (PCP) that the employer had breached by dismissing him?) and suggested that Andrew would be incapable of resolving that question unaided. Since he did not have a lawyer, they asked the tribunal to have his case struck out. In truth, he did have a solicitor, and an experienced one, but she was the head of her firm, and had been inundated with work. She was also covering for several colleagues working from home. The first thing she did was to come on record, in other words tell the tribunal (and the respondent) that Andrew had a lawyer. The respondent then withdrew their application to have Andrew’s claim dismissed, and our telephone hearing became a very straightforward event in which the judge asked us to confirm whether we thought the final hearing of the claim could go ahead. Both sides told him it should.
At the end of the call, the judge explained that if the country was still on lockdown in the autumn, we should anticipate that our hearing would take place online. ‘The software will be ready by then,’ he promised.
The outbreak of coronavirus encouraged utopian thinking. In Italy, former prime minister Matteo Renzi called for a commission into the future. Centre-right politicians in France set up an interactive website ‘Le Jour d’Après’ (The Day After) with detailed proposals including a significant increase in inheritance tax: ‘The surplus wealth should firstly be used to finance education, particularly but not uniquely, so as to allow the poor to access the same quality of education as the rich.’
For some time, the Financial Times had been predicting that coronavirus would legitimise state intervention: ‘Radical reforms – reversing the prevailing policy direction of the last four decades – will need to be put on the table. Governments will have to accept a more active role in the economy.’ From the other end of the political spectrum, the New Statesman insisted that there was already a consensus for greater state intervention: ‘Debates around economic policy in Britain had already been turning away from growth as a goal, with arguments over Brexit far more likely to centre on questions of sovereignty or democracy. That tendency looks likely to continue, post-COVID, with the issues of economic resilience, individual security, and social justice coming to the fore, and the state occupying a far bigger place in the economy.’
Something else had changed during the lockdown. Over the past few decades, for most people in Britain the lives of the poorest had become almost as unimaginably distant as the lives of the super-rich. This gap was filled by the stories that appear in the tabloids, in lurid Channel 4 documentaries. We told ourselves that the poor were lazy, unjustly privileged, that it was not fair how hard people had to work to pay their mortgages when someone else enjoyed almost as fine a life without needing to lift a finger. COVID-19 dispelled that ignorance, the smugness and security of those who were doing alright. Suddenly half the British population was living on state benefits of one sort or another, mortgage holidays, a furlough scheme that provided for everyone from the night-time cleaner to the company director. Even people with steady incomes started to see that there really was not much at all that separated their lives from those others who they had previously been taught to despise.
If it was correct that the state was going to be playing a larger part in our lives in future, and that there would be greater empathy for the recipients of welfare benefits, I found myself asking how housing and employment law should change?
We regard the typical form of employment as a permanent full-time job. Yet its prevalence has been eroded by the rise of self-employment, and of part-time, impermanent, and zero-hours contracts. Even the seeming security of a full-time permanent contract is less than it was. This, after all, was the experience of the coronavirus epidemic: that even people on secure-seeming contracts were in danger of dismissal.
As for housing, here too we have an expectation which fewer and fewer people meet. We assume that the typical person lives in a family home, possibly held on a mortgage or even that (with luck) the mortgage is fully paid.
Between 1945 and 1979, the largest number of homes built in the UK were built by local authorities. In December 1979, there were 21m homes in the UK, of which the largest number (12m) were owned by the family who occupied them. The next largest group were local authority homes (7m); then around 2m homes were privately rented. Because family sizes in local authority homes were larger than in owner-occupied properties, just under half of the population of Britain lived in council housing. The next two decades saw a dramatic transfer of homes from council housing to owner-occupation. By December 2004, the number of owner-occupied properties had increased to 17m, while the number of council homes had collapsed to 3m.2David Renton, ‘Housing: as it is, and as it might be’, International Socialism, Issue 134, 27 March 2012.
This was almost all down to just a single government policy, that council tenants should be granted a ‘right to buy’ their own homes.
In the last 20 years, owner-occupation rates have remained steady at around 17m. Meanwhile the number of households renting privately has increased from 3m to 5m. The total number of renters, including all social housing tenants, stands at 9m households.3English Housing Survey: headline report, 2018–19, Ministry of Housing, Communities and Local Government, 23 January 2020, pages 1–2.
Tenure is polarised by age. People who own their own home or occupy a council home tend to stay in it; younger people rent. Older people do not just live in more secure homes, they also inhabit larger houses, and they are more likely to have gardens. During the COVID-19 lockdown, they lived in more space.
As housing has become more expensive, more and more people have become stuck in conditions where if they lose their home, they cannot afford to find a new one. This is especially a problem for people who rely on social housing – many of whom took up their tenancy 20 or 30 years ago when there was much more social housing, and it was easier to access. Should they find themselves applying for social housing now, they would be refused. Meanwhile, they simply do not have the money to rent privately.
My solution to the crisis is a simple one: make it harder to dismiss and harder to evict, give workers and tenants greater security in both halves of their lives.