Proposals for specialist Housing Court risk ‘serious injustice’

Without sufficient resourcing and access to legal aid, changes to the court system could be disastrous for renters, argued Shelter in response to a government consultation on plans for a specialist Housing Court which closed last week. This article first appeared on www.thejusticegap.com

The consultation (Considering the case for a Housing Court) followed a call from the Residential Landlords Association for significant changes to the legal system, which they say is currently not fit for purpose. According to the RLA’s consultation response, nine out of 10 landlords (91%) who responded to their research support the creation of a specialist Housing Court.

The Housing Law Practitioners Association (HLPA) said, in their own response, that none of the problems within the current system would be solved by a Housing Court.

Policy director for the Residential Landlords Association David Smith has previously argued that a Housing Court, built on the work of the existing First-tier Tribunal (Property Chamber), could prove to be more cost-effective than the current system.

HLPA believe that it is unlikely that a Housing Court would save costs and argued that cutting costs further could not be done without causing ‘serious injustice’.

Both HLPA and Shelter said that if plans for a Housing Court go ahead, legal aid must continue to be available and took the opportunity to repeat calls for reforms to the legal aid system.

Shelter said that it is ‘vital’ that the government increases the availability of legal aid as part of any proposals for reform as it is ‘crucial to prevent and resolve housing issues, including the prevention of homelessness’. They emphasised a need for legal aid to be available for early advice in order to prevent small problems from becoming ‘full-blown crises and alleviate pressure on the courts’. They also recommended that the government reinstate legal aid for benefit and disrepair issues to ‘minimise the strain on the courts and ensure that people can effectively enforce their rights’.

Another one of a number of conditions of Shelter’s support for a Housing Court is that it must be ‘low cost so the fees or fear of paying costs do not prevent people bringing cases’.

The Residential Landlords Association’s response highlighted the delays that its members’ experience within the current system.

HLPA said that the lengthy delays experienced are due to resource issues caused by ‘chronic underfunding’ of the courts that it would take an ‘adequate level of funding’ to resolve, not a Housing Court.

Both Shelter and HLPA welcomed the idea of having specialist judges with expertise in housing law. Shelter said that it would ‘ensure more consistent decisions are made and could help court users navigate the system’. However, HLPA said that this could be accomplished ‘far more easily and cost-effectively’ by ‘ticketing judges’ in the County Court, as is done already for family cases.

The RLA also raised its members’ issues with the current system being too complex and said that it needs to be easier to use.

Shelter said that the general complexity of the system due to the nature of housing law is ‘further exacerbated by geographical variation and inconsistency in approach and decision-making’. They believe that ‘a new Housing Court could support people through legal processes (including both landlords and tenants)’ and should have new ‘user-friendly guidance on how to navigate the court system’.

HLPA said that the causes of the existing complexity, such as the underlying law and the procedural rules, would not be solved by a Housing Court. They noted that it is often argued that a Housing Court would make it easier for tenants to bring cases against their landlords. However, they said that it is the ‘limited availability of legal aid’ that is the ‘main barrier’ to tenants bringing claims. They said, ‘a more informal process would not enable tenants to understand the underlying law, or afford to obtain expert evidence, or present their arguments more effectively. As has long been recognised “the inarticulate will be at a disadvantage regardless of the forum”’.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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