All I want is a room somewhere
Far away from the cold night air
With one enormous chair
Oh, wouldn’t it be loverly?
Finally, a delayed look at the JUSTICE ‘Solving Housing Disputes’ report, which they announced as ‘bold and ambitious‘. Alas, I rather fear that it might be ‘courageous’ in the Yes Minister sense.
I’m not going to deal with every detail or point in the 150 page report (which includes 6 final pages of what is by any measure a hilariously self-important and peevish ‘Response to Dissent’), but try to deal with the main proposals.
The analysis of the problems of current housing law, court process and access to justice is largely accurate, but frankly very limited, given the ‘holistic’ aims of the proposed solution.
Yes, housing law is complicated (though often the cases are not). Yes, there are issues with access in terms of finding housing lawyers and advisers. Yes, many people do not qualify for legal aid and yes:
there is an inbuilt imbalance in the majority of cases, since resolving a dispute for a landlord or service provider is a business matter or a professional function while for a tenant it is about their home.
(An acknowledgement which seems not to inform the report much further).
Yes, dedicated judges with housing law experience or training would be good. And yes, court proceedings don’t, or can’t, resolve “all of the actual or potential issues between the parties”, (like benefit issues, post LASPO, because legal aid solicitors are expressly not allowed to).
The ludicrous part of the report begins to creep in when lawyers are blamed for the adversarial nature of housing disputes.
judges are ultimately required to adjudicate what are presented as single-issue disputes through an adversarial system. At the same time, the underlying issues which are inherent to so many housing disputes remain unaddressed and cause significant pressures elsewhere. Existing processes ultimately prevent the making of more meaningful interventions in the underlying interests at issue in a dispute.
And
Lawyers in this country are steeped in adversariality, they are deeply competitive, it is what they are trained to do, it is in their DNA
This is to mistake ‘adversarial’ for antagonistic. The aim of virtually every housing lawyer in practice is to reach settlement or an agreed disposition of the case, whether on duty scheme, after 5 minutes of instructions on a possession claim, or in the course of a substantial claim – the aim is almost always not to go to trial unless there is no other realistic alternative.
Given that a QC will only see cases that have been fought through first instance on to first, or second appeal, it is perhaps unsurprising that one would equate an adversarial court system with entrenched antagonism, but it does display a startling lack of awareness of what actually happens in the present system.
(Andrew Arden QC’s response to the dissent on this is jaw droppingly bad. Having admitted his practice was wholly appellate for the last 20 odd years, he claims as former head of Arden Chambers
as such, I was involved, to different degrees of closeness, in much of the work of members of Chambers. The predominantly collaborative approach implied in the Dissent is not one I recognise: to the contrary, the aggressive approach not uncommonly taken in housing cases was a major stimulus for the HDS proposal.
Andrew Arden QC, you were head of barristers chambers. When, exactly, do you think cases get to barristers? Would it be while they are being sorted out? Or would it be when they are pitched firmly into adversarial and hard fought litigation? Do you really think an argument from personal experience is remotely sufficient here? Poor advocacy, if so.
And then he says:
The economics of legal aid practice are a scandal: reliant on costs in successful cases, there is an implicit conflict of interest between legal aid solicitors and their clients, who rarely want to find themselves in court, an alien, alienating and confusing experience of which they feel little part.
This is frankly an egregious misrepresentation. Certainly legal aid practices need inter partes costs when they are (rarely) available. But to suggest that there is a conflict of interest, and that legal aid lawyers would force people into litigation, or to sustain it, where it was somehow unnecessary, is an untrue and disgraceful slur. Inter partes costs on cases which have had to be taken to court because of the opponent’s stance or inaction are wholly justified, but as ever, the primary goal is to settle. If the cases have been brought unmeritoriously, then costs will not be awarded. Once again Andrew Arden QC’s distance from and misunderstanding of actual practice, client advice and representation is clear.
But what of the proposed ‘non-adversarial’ alternative?
This passage, setting out the aims and principles of the HDS made me cringe:
“The exercise might be described as one in which the housing relationship is turned over to the HDS to be brought up to standard and handed back to the parties fully compliant and functional. It combines an advisory approach with active assistance, enforcement of regulatory and contractual compliance, and dispute resolution.”
This is not law, this is Goodbye, Mr. Chips – the firm but kindly schoolmaster, who will get the bully to shake hands with his victim, give them both a homily on mutual respect and getting along, maybe a bit of a fine for the worst behaved, and then send them on their way, certain that life lessons have been learned.
The intention is to establish a new culture, collaborative, open and ethical, designed to allow all parties to the relationship to fulfil their continuing roles otherwise than at each other’s cost.
This is, it has to be said, a complete nonsense.
Housing law is antagonistic not because of the attitudes of lawyers (which is where Andrew Arden QC’s peevishness is so splendidly ironic – he cannot possibly be wrong), 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.
Social landlords, whether council or housing association, have slashed their repair budgets, cut housing officers and support functions and prioritised income recovery over any other aspect of the L&T relationship. That is their economic reality, whether through cuts or policy. Private landlords, by and large, are focussed on return on investment and maximising rental income, while keeping an eye on the capital value of the property, to be disposed of when the time is right, while (understandably) fighting shy of dealing with tenants reliant on capped and cut benefits that have long since ceased to match market rents. This leaves a semi criminal class of landlords to exploit those who cannot afford anything better. (The idea that this latter class can be holistically fixed by a bit of a fine and a talking to about their obligations by the Housing Dispute Service is truly laughable).
Councils gate-keep and make bad homeless decisions in order to reject or deter as many applications as possible because they do not have the funds to provide even temporary accommodation (itself now mostly provided at high cost by exploitative private landlords), and cannot find affordable private sector accommodation, while there is no social sector accommodation left. Councils have no right to do this, but everyone understands their incentive to do so. It is not simply about poor decision-making, of the kind that a holistic talking to can resolve (though many decisions are poor), it is about a clear pressure to refuse applications whenever a (however poor) reason presents itself to do so.
No kindly but firm schoolmaster is going to change this. (The Local Government Ombudsman had a valiant go on homeless B&B accommodation, for example. Nothing changed for the better, it has worsened.) No ‘holistic problem solving’ will alter these underlying economic situations. To blame the lawyers for the oppositional nature of housing law in practice is – I have to say – the hubris of a QC mistaking his own practice for reality. Only a senior lawyer could think that a formal process could actually resolve concrete, real antagonisms, beyond providing the relative finality of a judgment.
We are told the HDS decisions would not be “exclusively rights-based but problem-solving”, but what the hell does that actually mean in a situation where the dispute is precisely about one or the other or both parties claiming their rights, in the context of an antagonistic relationship where at least one party is being denied their rights? What ‘problem’ is being solved at the expense of rights? Whose rights? Frankly, the historical precedent is that where one party can lawyer up to their own satisfaction and the other party has no or limited access to lawyers, ‘problem solving’ goes one way only.
Rather than housing problems, conditions and relationships festering, regulatory action – if needed – would be promptly taken, issues proactively identified and the underlying motivations and interests of parties to housing relationships explored in a mediative fashion. These are the primary objectives as distinct from punishing parties for their failings and faults. The culture must be one of substituting an examination of issues with a view to improving performance, for the allocation of blame and the imposition of penalties.
But sometimes, allocation of responsibility and imposition of penalties (or damages!) is exactly what is needed. Why on earth should a tenant not receive damages for disrepair because of the HDS’s view of the motivations of the landlord? Or a landlord not receive damages for, say, tenant damage to a property because HDS didn’t want to ‘punish’ them?
(NB damages are not ‘punishment’ for a party, they are recompense for the other party for what that party have been through or lost. That the report turns wholly merited damages into something conceived of as a ‘punishment’ is a worry, and indicative.)
Apparently, one could appeal a decision of the HDS to a Circuit Judge or Upper Tribunal or High Court. But how? How does one appeal a decision that is avowedly based on problem solving, not legal rights? What if the decision is wholly wrong in law but justifiable as ‘solving a problem’? On what basis could it be appealed? The report has no answer, just a glib reference to appeal. How case law is to be incorporated into, or develop from, this mush is, to say the least, unclear.
And then there are the practical elements of the proposal in terms of access to advice.
In the HDS, there are no hearings or parties’ lawyers; there are investigative interviews and ADR methods deployed but nothing akin to an adjudicative hearing. The HDS will not feature hearings with advocates taking positional approaches to a dispute. Instead, there is to be a focus on the real problems, parties’ interests and potential solutions that sustain future relations. Notwithstanding, there would be an obvious need for independent legal advice outside the process to be widely available and sufficiently remunerated for participants in the HDS process.
And
our proposal for the HDS is qualitatively distinct from any adversarial, court or tribunal process. The HDS would act as arbiter, investigator, advisor and problem solver, looking at all elements in a housing relationship on an inquisitorial basis. The intention is not for it to sit back and wait for relevant material to be brought to it by way of legal representations. It would ascertain that material for itself and be proactive in identifying party vulnerability and making necessary adjustments to allow them to participate in the process
Arbiter and advisor, huh. Oh and ‘problem solver’, of problems that it will decide are problems, not the issues that people have put before it.
If this wasn’t bad enough, it turns out that at ‘stage 1’ – the investigative stage, the HDS itself will advise parties of their rights and obligations.
If technical expertise is needed to advise the parties of their rights and obligations, be it legal, regulatory or otherwise, that expertise should reside within the HDS and be called upon as necessary, although at all stages parties should be told of their right to access independent legal advice through the process.
Quite how they are to do that, except in the most abstract sense, without reaching at least a provisional conclusion on the facts and merits of a case escapes me. Because that is the job of a party’s lawyer – to assess the legal and factual position and advise on that before any case begins. The HDS cannot do so at stage 1. Therefore it cannot fulfil that role. (Oddly, the report seems to recommend that people should have ‘an hour or two’ of funded legal advice prior to stage 1. Quite how that is to happen before someone has gone to the HDS escapes me, but a whole hour or two? Wow. That will sort everything.)
Legal advisors, it seems, only really come in at stage 2, provisional assessment, and stage 3, Alternative dispute resolution. Quite how useful that would be is unclear, as there seems to be no way to tell the HDS it is simply wrong on the facts or the law (or on its ‘solution to the problem’) except by demanding an appeal after the Stage 4 final adjudication.
But, in what can only be described as a politically tone deaf self-immolation, the report says that
All parties should have access to a degree of legal advice from panelled lawyers prior to or at Stage 1, perhaps one to two hours. Beyond that, advice ought to be means tested, but with much greater eligibility than under the current legal aid scheme. The default position should be that most tenants have access to a panelled lawyer throughout the process.
(And that those ‘panelled lawyers’ should be paid at rates higher than current legal aid).
When you have just spent 10 pages explaining why the HDS would make lawyers unnecessary, and have taken the post LASPO slow motion collapse of housing legal aid advice as a fait accompli that cannot be reversed, this is at best a discardable afterthought. (‘Oh, maybe there should still be some advice for those who can’t afford it, even if the HDS will have all the expertise to sort things out’ is not a strong or convincing argument for adequate funding).
If it isn’t such an afterthought, and it is an admission that people would still need legal advice and assistance on housing cases, then all the ‘Goodbye Mr Chips’ holistic, investigative and explanatory nonsense set out above falls away. (Unless it is being assumed that the HDS will be so poor at explaining its decisions that the parties will need lawyers just to explain them to their clients.)
What is the most likely outcome is that those who can afford legal advice and assistance will obtain it throughout. Those who can’t might have an hour or two of ‘panel solicitor’ time. An inequality of arms that already exists in First Tier Tribunal proceedings and would be replicated in the HDS.
There are some potentially good ideas in the report, though woefully lacking in thought out detail – for instance, an independent body for section 202 reviews on homelessness issues. That could be a very good thing, but needs to be much more considered that it is here. But frankly, these are swamped under the incoherent, inadequate wish fulfilment of the HDS proposal. Heaven knows that housing law as a whole, and how housing cases in the courts are dealt with (and legal representation on those cases) in is need of serious consideration and potential reform. Sadly, this proposal isn’t the answer.