A specialist Housing Court is in the air. Sajid Javid, Minister for Housing. Communities and Local Government, has repeatedly mentioned ‘discussions’ with the judiciary on a housing court, ever since the last Tory conference in October. There has been no mention of any progress – and surely progress would have to involve the MoJ, not just the judiciary.
And then there have been noises from the President of the Property Chamber about extending the jurisdiction of the First Tier Tribunal (Property Chamber), backed up with regional pilots on limited issues (none tenancy related). Now that Tribunal judges can also sit as county court judge, this has gained a further impetus.
Most recently, in the Law Gazette, my esteemed colleague (and occasional NL contributor), David Smith wrote an opinion piece on the prospects and merits of a housing court. The thing is that David’s article crystallised a lot of my concerns, indeed fears, about at least this version of a housing court.
(I have discussed this with David, but as his article was public, I rather felt this should be).
I don’t think there can be any objection to a specialist housing court per se. The question is, quite simply, what form such a court could or should take.
The proposal raised in David’s article (and that has some mutterings of support elsewhere, and may be being considered in Government), is for a specialist housing court based on the First Tier Tribunal (Property Chamber), as an ‘expert’ and ‘low cost’ jurisdiction, which could hear (or deal with) most housing law matters. As David’s article puts it
All possession matters, as they relate to residential property, under the ambit of Civil Procedure Rule 55.
Tenancy deposit disputes as contained within section 214 of the Housing Act 2004.
Repairing obligations related to the Landlord and Tenant Act 1985, both under section 11 and the revised powers created by the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill.
Harassment and eviction claims arising from the Protection From Eviction Act 1977 and the Housing Act 1988.
Injunctions to seek access to residential property.
Matters related to and contained within the Defective Premises Act 1972.
Relevant matters contained within the Environmental Protection Act 1990.
The first, and most important point to note here is that possession, harassment and illegal eviction matters are currently eligible for legal aid for the tenant or occupier. But there is no legal aid for Tribunal matters. Without a very substantial changes to both the Tribunal enabling legislation and to LASPO, there would be no legal aid available in such a ‘housing court’. This would be utterly unacceptable. There is no negotiation or amelioration of this – either there is legal aid available or a ‘housing court’ would be an abandonment of justice.
It is worth noting at this point that while the First Tier Tribunal (PC) was designed as a ‘lawyer free’ jurisdiction – and hence the ‘no costs’ general position – that is most certainly not how it has turned out. In leasehold disputes, freeholders and managers typically lawyer up, while leaseholders usually can’t afford to. Even if – and it is an if – the freeholder/landlord can’t recover their costs contractually under the lease or tenancy agreement, they will still pay for lawyers to win the dispute. The result, in my experience, is that the FTT (PC) exhibits possibly the greatest inequality of arms of any jurisdiction.
There is no reason to believe that a ‘housing court’ cast simply as an extension of the FTT would be any different. Without legal aid, it would be a disaster. Even with legal aid, it would be a disaster for tenants.
One of the requirements for legal aid, and most certainly for any other form of funding for those of limited means, such as conditional fee agreements, is that inter partes costs are available where the aided party is successful. On an illegal eviction claim, for example, or a serious disrepair claim, it is hard to see why the landlord should benefit from a ‘no costs’ regime. Or if there is to be legal aid, why the tax payer should pay for the tenant’s representation, rather than the offending landlord?
And then there is the question of jurisdiction. As matters are now, the Tribunal cannot make an enforceable order or injunction order. Tribunal judges can now sit as county court judges, but if they are to do so, then why shouldn’t county court rules – on evidence, on process, on costs – equally apply? To sit as a tribunal up to the point of judgment, and then sit as as a county court is, in its own way, as denial of justice.
Even beyond that, if Environmental Protection Act cases are to be in the ‘housing court’, the EPA would have to be amended to move such cases from a criminal jurisdiction in the Magistrates Court. Further amendments would be required to Protection from Eviction Act, Landlord and Tenant Act 1985, Housing Acts 1985 and 1988 and assorted regulations, as well as LASPO and the Tribunal legislation. What would have to be the result would be neither a court nor a tribunal, but a whole new separate hybrid jurisdiction.
And lastly, whatever spare capacity the FTT (PC) may currently have is simply (and categorically, with emphasis) not enough to take on some 120,000 possession claims per year, let alone the other housing matters. Either the ‘Housing Court’ would turn out to be as overloaded and delayed as the county court, or be even worse. If there is to be an expansion of the FTT, then there can be no doubt that fees would have to increase accordingly, making the vision of a low fee, low cost jurisdiction not so much remote as a pipe dream.
The short version? There is no short cut to a quick and efficient specialist housing court. Not unless MoJ are willing to stump up for it, which seems, shall we say, unlikely. And to take that court out of a costs regime would lead to a huge access to justice issue and a massive and unjust inequality of arms.
Apart from that, it is a good idea.
Giles I hope your delicate use of irony is not lost on your readers. I want you to know that I am doing my bit – currently in the Bristol Civil Justice Centre Chancery List to try and secure a major damages award against a “leading” Letting Agent , the now dissolved Manx Company so called Landlord and the real but undisclosed person a UK resident all of whom who have hurt me and evicted me from a property in Bath Somerset. I believe that if there is a sea change in the approach of the Courts or the Property Tribunals towards oppressive greedy cynical and arrogant treatment by Landlords the message will soon get delivered and the case load will rapidly shrink ; after all that is the real problem too many cases not enough money in the Court & Tribunal systems
I agree with your (Giles’s) reservations. There is a tremendous temptation in government (I write as an ex-MoJ senior civil servant, closely involved in setting up the post-2007 tribunal system) to think that setting up a new institution or extending an existing institution into new areas, will somehow prove a solution to long-standing and endemic problems. It may be a sensible solution if the existing institutions overlap in their roles or are organised in a manifestly inefficient way but if you go ahead you do have to be very clear in your mind as to what you think the new institution is going to achieve, why it will achieve it, why the same aims can’t be achieved by more straightforward means within the existing structure and, crucially, what setting it up will not and is not intended to achieve. Otherwise it just becomes a panacea. Looking at David Smith’s article, there seems to be a long list of objectives – faster and cheaper possession proceedings for landlords, better protection for tenants’ rights, more convenient hearing locations, more online and paper resolutions, elimination of the need for expert evidence, and so on. All very worthwhile, but just merging jurisdictions into a housing court or tribunal won’t deliver any of them.
As a Judge of the First-tier Tribunal Property Chamber, I’m distressed to hear you think our jurisdiction is so unequal. You seem to forget that the Tribunal’s entire purpose is to adjudicate on statutory rights brought in specifically for the benefit of tenants and lessees. Our very existence is an advance in tenant’s rights. Having said that, our adjudications should be based on fair hearings and we should always look to improve. In my experience, it is not common for freeholders and managers to “lawyer up” that much more than lessees but, if you have some concrete examples of inequality at the Tribunal and how it should be addressed, I would be more than happy to look at the issue further.
Nik, what I said was that the FTT sees a large scale of inequality of arms. I don’t think this is particularly controversial. Tribunal decisions frequently show only one party represented, and that is rarely the leaseholder.
That is not a comment on the Tribunal’s purpose.
With respect, Giles, you said the FTT Property Chamber exhibits the greatest inequality of arms of any jurisdiction. That is most definitely controversial!
‘In my experience’ – it may well be that, say, the Family courts have a greater occurrence of inequality of arms. I have not experienced the Family courts.
I presume the Tribunal has the stats on relative representation. Those would be interesting.