Filling in the Gaps: Enhancing Procedural Fairness in Housing Possession Cases

The Government has announced plans to reform the legal process of housing possession, but details are not yet known. Contributing to the reform debate, this post sheds some light on the ‘evidential black hole’ of housing possession and suggests ways to improve it. In 2018, there were 150,000 claims for possession initiated in the county courts in England and Wales, a substantial drop compared to previous years but still significant, especially for those threatened with loss of home. The adverse impact that the threat of eviction can have on the health and well-being of those involved, particularly children, is well documented so it is worrying to learn that the recent introduction of Universal Credit is increasing the likelihood of some claimants falling into arrears.

Despite the prevalence of possession claims, very few people know what happens in court. Cases are heard in private, and ‘run of the mill’ possession cases are not reported. Although the parties will be informed of the outcome, even they do not receive written reasons that explain why that particular decision was reached. It is, as Loveland describes it, ‘invisible law’. Earlier work (led by Blandy, Ford, and Hunter) has, however, made the reality of housing possession cases more visible. More recently, my research, both sole authored and in collaboration with Professor Susan Bright and Professor Mandeep Dhami, (the latter combining insights from both law and psychology) has explored how these cases operate in practice and the factors that influence decision making by judges and lenders.

Our research reveals that hearings tend to be over very quickly. For example, during 2012-14, with Professor Bright, I carried out mixed methods research to examine the importance of information, advice and representation in housing possession cases, including both mortgaged and rented property.The report explains that even though these cases will determine whether or not a family loses their home they tend to be scheduled for less than five minutes. This stands in stark contrast to other, more minor, civil cases. As one judge told us, ‘… small claims, okay, it could be important to the people involved but, you know, not someone's home, not someone's children. And we devote probably a good two hours plus to each case even if it's for £35 eBay charges. Now there's something a bit wrong there.’

Following on from our 2014 study a more detailed investigation of a small sample of housing possession cases was carried out in 2017 with Professor Dhami, an expert on human judgment and decision-making. The aim of this study was to identify the information presented to judges and to discover more about how judicial decisions are made. We examined 31 court records (including court files and audio recordings) involving social tenants in rent arrears and found that 29% of the hearings took a minute or less (including a case where a suspended possession order was given), 26% took between two to four minutes and only 6% took ten or more minutes. This is surprising given that, in relation to claims brought by social landlords for rent arrears, the judge can only make an order for possession if he or she considers it ‘reasonable’. In determining the question of ‘reasonableness’, it was Lord Greene MR in Cumming v Danson who noted that the judge must take into account ‘all relevant circumstances’ and give ‘such weight as he thinks right to the various factors in the situation.’ This begs the question of how is it possible to undertake this deliberative decision-making exercise in only a few minutes?

One reason may be that these cases don’t involve particularly complex legal rules. The question typically boils down to whether the occupier can afford to pay something towards what they owe in addition to their regular rent or mortgage payments. Another is that often (in around 90% of cases) the occupier doesn’t provide any information prior to the hearing via the relevant court form, as we found in our 2014 study. Additionally, very few occupiers turn up for their court hearing (in around 35% of cases in our 2017 study). If the judge has no information regarding the occupier’s circumstances, then there are no ‘circumstances’ to consider and so the case may be decided in seconds.

It is disappointing that so few attend; if they do turn up they will often have the opportunity to access legal advice and representation from the Housing Possession Court Duty Scheme. Some may be afraid of going to court – evidence suggests this can be a source of anxiety. It may be that they conjure up an image of a stern and formally dressed judge sat in open court behind a high bench but the reality is quite different. Usually it’s a judge in a private room- no gown, no wig - yet most occupiers will not be aware of this.

Around half of the 31 cases in our 2017 study resulted in an adjournment, sometimes because important information was missing or the issues were complex (e.g. a defence was raised involving the Equalities Act 2010). The most common reason for adjournment, however, was that there were unresolved benefit claims, an issue likely to become more common given the difficulties encountered in claiming Universal Credit. Whilst this means that the occupier gets to keep their home, albeit with the possibility of another court hearing and the threat of eviction still hanging over them, it also means that a considerable amount of time is being spent on cases that are not resolved.

The speed with which possession cases are heard combined, with information deficits and low levels of occupier engagement, raises concerns regarding the quality of justice being dispensed. Is it possible to conduct a ‘proper balancing of all relevant factors’ in just a few minutes? According to psychological theories of decision-making, what is likely to be happening here is that judges are adopting System 1 (intuitive, heuristic, experiential) thinking rather than System 2 (deliberative, analytic, rule-based) thinking. This is not necessarily problematic, and may be sensible and necessary ‘judgecraft’, but heuristics can introduce systemic biases, errors, and inconsistencies between judges. The issue here is that both the legal rules (particularly in respect of social tenants) and the principles of procedural fairness require that judges engage in System 2 decision-making but the context of housing possession cases (information deficits and time constraints) hinders the ability of judges to do that.

In response to these concerns we have put forward a number of proposals. First, to improve the efficient use of court resources, we recommend the introduction of an ‘administrative filter’ designed to avoid court hearings that will only result in an adjournment. So cases that are extremely likely to be adjourned due, for example, to an outstanding benefit claim will be ‘filtered’ out of the court system until ‘hearing-ready’. This might be achieved through the existing online claims process. This could (possibly) allow for more time to be devoted to cases that do require the exercise of judgement, thereby allowing for more considered decision-making.

Second, to encourage more engagement by occupiers we propose the introduction of an information campaign which highlights the informality of the court process and the availability of legal advice on the day (although the Ministry of Justice is currently ‘re-examining’ this scheme), as well as a reworking of court forms to make them more user-friendly. Eye-catching posters and leaflets could be distributed in places where occupiers in debt are likely to go, such as debt advice services, food banks, and doctor’s surgeries, as well as wider use being made of social media such as Facebook, Instagram, and online videos.

Finally, to make these cases more visible, we recommend that the reasons for decisions be made publicly available (in an anonymised form). As Ho argues, ‘the giving of reasons on a legal point enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.’ This may raise concerns regarding burdens upon an already stretched court system but only brief reasons are necessary, similar to Form N460 (which requires brief reasons for allowing or refusing permission to appeal). In practice, an extra box on the order for possession form (Form N26) could ask the court to note the reasons for the decision and in particular, to specify in as much detail as possible, why it is reasonable or not to order possession.

If successful, these proposals have the potential to improve the use of court resources, enhance procedural fairness and perhaps most importantly, remove some of the mystery that surrounds the possession process thereby encouraging more occupiers to participate in it.

How to cite this blog post (Harvard style) 

Whitehouse, L. (2019). Filling in the Gaps: Enhancing Procedural Fairness in Housing Possession Cases. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/10/filling-gaps-enhancing-procedural-fairness-housing-possession (Accessed [date])