Report suggests court system’s response to the COVID-19 pandemic in housing possession cases was largely ineffective
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Marc Bloomfield
Description: UKRI ESRC
Professor Lisa Whitehouse’s report, Assessing the court system’s response to the COVID-19 pandemic in housing possession cases in England and Wales (January 2022),1The executive summary is available here. offers a rapid evaluation of the effectiveness of the court system’s response to the pandemic, and from this, it arrives at recommendations designed to tackle some of the challenges faced by the civil justice system in the coming years. The project was generously funded by the Economic and Social Research Council.
In assessing the effectiveness of measures including the Overall Arrangements for Possession Proceedings (OA) and the Rental Mediation Service (RMS), the yardstick used derives from the objectives set out by the architects of the court system’s response, the Master of the Rolls Working Group on Possession Proceedings. Those objectives were:
(a)reducing volume in the system by enabling earlier advice and increasing settlement;
(b)taking account, within limits that the law has imposed, of the effect of the pandemic on all parties; and
(c)maintaining confidence in the fairness of outcomes.
In assessing the extent to which these objectives were met, the report supplements existing research with original first-hand accounts from those most closely associated with the possession process, namely, occupiers, debt advisers, landlords (private and social), claimant representatives and Housing Possession Court Duty Scheme (HPCDS) providers.
An analysis of the data obtained suggests that, while the underlying aims of the response were laudable, the measures introduced ultimately proved ineffectual:
the OA served mainly to delay, rather than resolve, cases;
judges did receive more information as a result of the ‘enhanced information’ provisions, but it did not influence the decision-making process in all cases, particularly where possession was on mandatory grounds;
very few referrals were made to the RMS; and
the success of the ‘review date’ and ‘substantive hearing’ reforms was undermined by low levels of occupier engagement.
In response to these findings, the report makes a number of recommendations including:
the retention of the review date, or a similar initiative, designed to embed advice as early as possible in the arrears and possessions process – the Ministry of Justice’s consultation on the introduction of the Housing Loss Prevention Advice Service is welcome, but HPCDS providers will have to be adequately funded and resourced to enable them to provide debt and welfare advice as well as legal advice;
block-listing should not be reinstated;
the use of mediation in the very early stages of the arrears management process (ie, where the home is not yet under threat), particularly in cases involving social landlords;
the introduction of a pre-action protocol (PAP) for private landlords – the Civil Justice Council should consider this as part of its consultation on PAPs; and
the publication by HM Courts & Tribunals Service of case data, including whether the defendant attended and was represented at the hearing, as well as the reason for the decision.
While we do not know how the pandemic will progress, any challenges that need to be faced will require a response different from that implemented during March 2020–November 2021. Elements of it are, however, worthy of further investigation and revised implementation, particularly those relating to the provision of early and meaningful advice to the parties in the hope of arriving at pre-court settlement.
A longer article on these findings will be published in March 2022's Legal Action.
 
1     The executive summary is available here»

About the author(s)

Description: Lisa Whitehouse - author
Lisa Whitehouse is professor of property law, policy and practice at the University of Southampton.