Authors:Andrew Arden QC
Last updated:2023-10-26
Personal reflections on the development of housing law
Marc Bloomfield
Description: LAG 50 Years
Andrew Arden QC looks back over 50 years of his involvement in housing law.
Like so much else in life, my involvement in housing law emerged from a mix of the personal and the political. My first article for LAG was in March 1974, on exemplary damages in eviction cases: I derived the material from research I was doing for my pupil master, the ultimate radical lawyer Tony Gifford (then as now Lord Gifford; but not yet then Lord Gifford QC), for a case he was working on, but the idea to turn it into an article was neither his nor my own; rather, it was that of a close friend, the energetic and inimitable Clive Morrick, then Assistant Director of the relatively newly-formed Legal Action Group and editor of what was known as the LAG Bulletin. With the bit between my teeth, and a few pounds in my pocket (at a time when, as a pupil, I was earning nothing), I followed it up with ‘Service Tenancies and Service Occupancies’ in the May 1974 Bulletin and, in July 1974, with what became one of my best-known articles for many years, ‘Tenant or Licensee’.
Lawyers were dealing with housing cases often more than any other; they wanted material that directly addressed the issues that concerned their clients.
These articles – and others before them by writers such as Jeremy Smith and Dawn Oliver – were listed in the Bulletin under the heading ‘Housing’, rather than ‘Landlord and Tenant’: I am sometimes credited with the formulation of housing law but use of the term by LAG preceded my involvement with the subject. The reality is again a mix: lawyers – legal aid lawyers, but especially those in the newly-founded Law Centres – were dealing with housing cases often more than any other; they wanted material that directly addressed the issues that concerned their clients and were tired of trying to dig the answers out of analysis in Woodfall or Hill & Redman directed far more to business and agricultural lettings than to residential accommodation.
This shift to a practical emphasis was not only to be found on the ground but began to be reflected in the courts: in Woodward v Docherty [1974] 1 WLR 966, the Court of Appeal analysed whether accommodation was furnished and thus outside of security of tenure under the Rent Act 1968 by reference – among other matters – to the real cost of the sort of shoddy, second-hand furniture to which occupiers of bedsitting rooms and flats were accustomed as well as, critically, to the value to the landlord not in the return on the investment but in keeping tenants out of security. In short order, Woodward v Docherty was followed by the Rent Act 1974 which substituted the resident landlord for the furnished tenancy: while of course there have been attempts to abuse the exemption, the reality is that it served to settle down that much of the law, largely because it turned on real factual conditions rather than those which were susceptible to easy manipulation. The new law has rarely led to decisions which are at odds either with the parliamentary intention or, more centrally for my point here, with common sense and experience.
Housing law as we have come to know it was, I believe, a product of its times: increased use of legal aid; wider access to education brought in a class of lawyers from a wider background; social attitudes, too, were changing – we are talking about the early 1970s, following the seminal, game-changing 1960s; many people wanted more from their lawyers, and many lawyers wanted to provide it.
It was my work for LAG writing about housing law which directly led to an approach from the leading legal publishers Sweet & Maxwell who commissioned twin handbooks from myself (Housing: Security and Rent Control) and Tom Hadden, a lecturer at Belfast University (Housing: Repairs and Improvements). My book went on in the next edition to cover the subject as a whole, under the name the Manual of Housing Law – it is now in its 11th edition and, after some years with S&M, has reconnected with its roots at LAG and with its companion works, what are now Homelessness and Allocations (in its 12th edition) and Quiet Enjoyment: Protection from Rogue Landlords (in its 8th edition) which have been with LAG all along. I was also invited by S&M to take over the Encyclopedia of Housing Law and Practice and restructure it to reflect the new approach to what housing law as a subject meant – all that law which governed how people occupied property as a home. The subject was given much-needed intellectual discipline by the highly-regarded academic, Martin Partington, now Professor Martin Partington CBE, QC (Hon), with whom I had worked on the first edition of Quiet Enjoyment and with whom I was privileged to write the textbook – now a loose-leaf – Arden & Partington’s Housing Law, likewise published by S&M, who went on to lead the Law Commission’s work on the reform of housing law, as well as by the late David Hoath, author of Council Housing (later Public Housing Law) and Homelessness, both S&M ; it was also given immeasurable support from the mid-1980s by Caroline Hunter, now Professor of Law at York University, with whom I wrote at one time or another on all the works I was responsible for. And, in around 1982, S&M took over the Housing Law Reports, which I had earlier been invited to establish by a little-known firm in legal publishing, George Godwin & Co. All it needed was the Journal of Housing Law, which S&M started to publish in 1997.
The LAG connection was the source of all of this: its right to call housing law its own is indisputable, although it is also right to recognise the enormous input from S&M, the adoption of the subject by whom added a real degree of formal (perhaps I mean establishment) recognition or validation, especially in LAG’s very earliest days before it had established its own standing and the widespread credibility it now enjoys.
For some years, I was not only contributing housing law articles to LAG on core issues such as statutory residence, joint tenancy, board and attendance, subtenancies, premiums, distress for rent, possession orders, harassment and illegal eviction and homelessness, in a sense helping to build the subject brick by brick, but was also formally Housing Consultant to the Group and to the Bulletin. I stepped down from that rôle – and from routinely writing for the Bulletin – in around 1980 or 1981 because I believed then, as I continue to believe, that a plurality of views is important to the development of the subject; it goes without saying to the reader of what is now Legal Action that this was provided, above all, by the writing partners Jan Luba (later Jan Luba QC, now His Honour Judge Luba QC) and Nic Madge, formerly a solicitor at Camden Law Centre, then a District Judge, finally a Circuit Judge, primarily through their indispensable Recent Developments column.
They, too, used the LAG rôle as a launch pad for other books, including the standard practitioner texts Defending Possession Proceedings (now in its 9th edition) and what is now called Housing Conditions: Tenants’ Rights (now in its 6th edition), together with the Housing Law Casebook (now in its 7th edition), all published by LAG and Housing Allocation & Homelessness (now in its 6th edition), published by LexisNexis, to the 1st and 2nd editions of which, by Jan and Liz Davies (now Liz Davies QC) I extended a warm welcome in the Preface to the 8th edition of Homelessness and Allocations, in terms that may be worth repeating.
There has been another development on which I would also like to comment. For the first six editions, over a period of more than 20 years, I hope it will not be considered immodest if I say that this was the only book which addressed homelessness (and allocations from 1996) in anything like the sort of full detail that a practitioner needs. From the last edition, it has been joined by another, also detailed work, Housing Allocations and Homelessness by Jan Luba QC and Liz Davies, the second edition of which was due to be published shortly before this. It is most welcome. Monopolies are always a bad thing, even one’s own. In an area of law governing what may count amongst the most difficult conditions people can have to experience, where merits inevitably and rightly play a substantive part in the consideration of the court, just as do the economic pressures on local authorities charged with resolving them (but not adequately funded to do so), the law is rarely, should not be, and hopefully never will be, ‘fixed’ or ‘certain’ beyond argument, at least in many (often critical) respects. Even with the best will in the world, even with the most conscious effort to do so, one author – even with co-authors – or one book cannot do full justice to all the different ways every case can be interpreted, let alone how it may be deployed. Once there are – at least – two books, or two teams, capacity to identify such ‘room for manœuvre’ or ‘tensions’ increases exponentially. It may make for less simple solutions, but homelessness is inherently a complex problem, and deserves the maximum effort – as the volume of cases makes clear practitioners are more than willing to give it.
Of course, at a more human level, competition also cautions against complacency!
There are other works on housing law which have contributed to that plurality, which the subject (not just homelessness) merits, published neither by myself nor Jan and our various co-authors, but focusing on these alone tells the tale of a subject which has spread itself across legal publishing and come to maturity: again, it is a maturity that was fostered and continues to be nurtured by LAG, as witness its amazing housing law library, to much but not all of which I have referred above.
Legal literature is not, however, an end in itself. Our legal system is extensively influenced, if not dominated, by the way in which cases are decided in court, ultimately in the Supreme Court: given the exclusive right of the courts to interpret legislation and their rôle in relation to the protection and development of the common law, that is necessarily so. There is, however, much that may be criticised about our approach to cases: in particular, unlike some other jurisdictions which allow the admission of a wide range of material designed to set issues in their real life context, our approach largely remains narrowly focused on the facts of each case addressed in oral argument, with written materials considered secondary (and sometimes seemingly barely considered at all). True, the Human Rights Act 1998 saw some broadening out of material in some areas, but it is not the norm and, with the retrenchment of legal aid and the encroachment of narrower, post-Brexit attitudes, it may even be in retreat.
In the absence of the wider approach, specialism goes some way towards the same end. For a fairly long stretch, housing law benefitted from this, with judges who emerged from the same times and attitudes as LAG and the development of housing law, as I referred to it above, rising ever higher with the passage of time. As a subject, housing law did for a while seem to achieve its goal with courts ceasing to approach residential issues as if they were commercial agreements between equal parties; rather, the courts, and in particular the higher courts – up to and including the highest – displayed a real awareness of the practical issues and interests in housing and a commitment to determine cases in the way they thought advanced all its users.
We are, I fear, drifting back to the days when the oral tradition, unsupported by a wider sense of subject, allowed advocates to advance assertions without any basis in reality.
I don’t think that commitment is there in the higher courts today: to the contrary, I sense a very real reversion (if I may be forgiven the pun) in those courts to uninformed decision-making, at best interpreting legislation in a vacuum and at worst designed to achieve the pre-determined results of judges who do not have the experience and insight into ‘real life’ that was the hallmark of the likes of – say – Lady Hale, Lord Neuberger, Lord Hope or Lord Carnwath. We are, I fear, drifting back to the days when the oral tradition, unsupported by a wider sense of subject, allowed advocates to advance assertions without any basis in reality. It is a trend which I believe all housing lawyers should combine to resist, by deploying their knowledge of the subject and – above all – its context, no matter for whom they appear, denying themselves the indulgence of hyperbole, embellishment and exaggeration designed to harness the ignorance or engage the prejudices of tribunals through populist representations, fantasy policies and phantom purposes.
Housing law is about people and how they live and deserve to live.
I was in my mid-20s when, as a student, I started down the course of my professional life; my idealism was rampant, my optimism in overdrive and the opportunities to make a difference seemed legion. Now in my mid-70s, if the idealism is still there, the optimism is threadbare and the opportunities more a reminiscence than a reality. Notwithstanding the challenges before it, I nonetheless cannot let go of the notion that housing law is about people and how they live and deserve to live, and that – ultimately – those are the criteria that will prevail in the direction of the subject, an objective that housing lawyers must continue to strive to achieve, something they cannot do without the support and resources of a body like LAG.
Twitter quizzes Andrew Arden QC
Jeinsen Lam, housing solicitor, South West London Law Centres
A. What one change would Andrew make to improve the prospects/opportunities for women and minorities who want to become barristers?
B. It is International Women’s Day next month. In what way does Andrew think things are better or worse for women who want to have a successful career at the Bar/Bench compared to when he was first called?
I don’t think I am equipped to make these judgements. Things certainly seem better than when I started, but it is still a very difficult environment with a continuing emphasis on the adversarial approach, and a continuing Oxbridge domination of the profession and, in particular, of the Bar and courts, with its (to my mind) elevation of a particular style of (meretricious) argument over somewhat more realistic and sound human considerations which many – of course, including many women – find unnatural and uncomfortable.
Many lawyers (even quite senior ones) talk about the concept of imposter syndrome and the feeling that they still don’t belong and will be found out. Has Andrew ever felt that way and if so, what advice would he give to junior barristers/solicitors at the start of their careers?
I felt that way from the beginning and it never went away – it still hasn’t! My advice to junior lawyers at the start of their careers, for what it’s worth, is (a) to bear in mind that it is a common reaction familiar to many, (b) to look around you at others in the profession and see how much in common you have with many of them, (c) to appreciate that the law belongs just as much to you as to anyone else, and (d) to take a good long hard look in the mirror every morning (well, maybe not the ones where you’re hungover!) and remind yourself of what a difficult journey you have taken to get where you are and how very much you have achieved – be proud of yourself.
If Andrew Arden had a machine that could create the perfect barrister. Taking one quality from four different barristers throughout his career who would make up Andrew’s perfect robot barrister?
For total commitment translated into biting legal submissions, Tony (Lord) Gifford QC. For sheer fearlessness, there is no one to match (or even come close to) Michael Mansfield QC. I once described Richard Drabble QC to a legal directory as the best advocate of his generation: he has the ability to carry the mood of the court along with him even when they do not accept his argument, he never talks down to anyone (court or opponent) and his sense of humour is ever-present. I usually enjoyed listening to Jan Luba QC for his fluent advocacy.
A. The country is currently in a housing crisis where many people are spending more than 50 per cent of their income on rent, with little security of tenure due to s21 and unable to access social housing. How does AA think the gov should deal with these issues?
B. PS and does Andrew have a view on rent control as a viable policy to help renters or does he perhaps believe that such a policy creates more problems than it solves?
I have strong views on rent control; we regulate fuel prices, water costs, and if food prices go too far out of control, the government will have to – and will – step in and regulate them too. Obviously, rent control causes some problems: in particular, as it inevitably also means security of tenure (you cannot have one without the other), it can provoke some private landlords to take unlawful action to evict, but those are the very types of landlord that I think should be driven out of the business in any event. If the private rented sector is to continue to play as large a part in the provision of housing as it currently does, it should be tightly regulated so as to limit providers to those who are content with a reasonable return, willing to recognise that the provision of homes enjoins them to act responsibly and considerately towards individuals and families and submit to quality assurance to ensure that they do so, and who have the stability to do so.
So far as the wider housing crisis is concerned, I wrote a piece last year called Fair Housing for All (24 JHL 45) advocating (a) stringent and precise obligations on local authorities to identify the extent of housing they need to overcome homelessness in their areas, (b) an obligation on owners with land designated for housing and/or with planning permission for housing to develop it for housing within defined time-limits absent which it would be compulsorily purchased at a value which ignored its housing use value (‘use it or lose it’), and (c) an obligation on authorities then to develop that housing and either themselves or through a registered provider rent it out socially or offer it for sale for owner-occupation at an affordable price. Somewhat utopian, I know, but we are an island nation, with a limited supply of land, and we need to use all of it that can be released for housing for that purpose.
Mark Prichard, social housing consultant
During your career you’ve advised local authorities but also represented tenants and homeless persons. What exacerbates the sectarian nature of the housing profession in England? And why isn’t there an effective nationwide campaign, given the extent of the current housing crisis?
The sectarian – or factional – nature of the housing law profession has been a bugbear of mine since, I guess, the mid- to late 80s. I did initially subscribe to a ‘tenant/homeless persons’-only approach in the 70s when we were struggling to make that voice heard and to persuade the courts to recognise tenants and the homeless as having interests which should not be addressed as if they were needs and agreements between equal parties. During the 1980s, I then conducted a number of local authority enquiries (the first of them into housing association funding by the GLC) and it did open my eyes to the very real commitment, often passionate, of many of those in local government and elsewhere in social housing, and I realised that they also deserved support and encouragement, especially at that time when local government was being systematically diminished and deprived of funding by the Thatcher government; certainly, I felt that blind or blanket hostility towards them was unwarranted and unhelpful.
I did talk and write about the dangers of division between housing law factions (see in particular talks to HLPA in 2005 and SHLA in 2012 – 9 JHL 17 and 16 JHL 11) which could be exploited by government and the desirability of a harmonised approach, but factionalism continues at cost of the gains that unity could achieve. As for the causes of it, I am not sure there is an easy answer, but somewhere within it may lie the proposition that when people feel that they or their cause is weak or vulnerable, they become more defensive and proprietorial.
Vicky Fewkes, director/supervising solicitor, Ealing Law Centre
Does Andrew think ‘housing courts’ will ever be implemented?
I daresay they will but what they will comprise is likely to be a long way from the sort of body I believe they ought to be: inquisitorial rather than adversarial, professionally informed and influenced not exclusively by law, and procedurally and ‘environmentally’ (ie, where and how courts are physically set up and laid out) less intimidating.
What is Andrew’s most memorable case/client
I started thinking about this one on Wednesday morning, with a Friday midday deadline – and was still thinking about it then. The early homelessness cases of R v Hillingdon LBC ex p Streeting [1980] 1 WLR 1425 and R v Hillingdon LBC ex p Islam [1983] 1 AC 688 were memorable, and Robinson v Hammersmith & Fulham LBC [2006] EWCA Civ 1122; [2007] HLR 7 was a joy for the court’s sheer horror at the local authority’s conduct but one of my last cases for a local authority (R (o/a Edwards) v Birmingham CC [2016] EWHC 173 (Admin); [2016] HLR 11) was a long and demanding but rewarding experience that I will never forget, not least for the close relationship that developed with Birmingham’s brilliant then head of homelessness and his principal officer. A number of (other) HL and SC cases also naturally stay in my mind.