HOUSING LAW PRACTITIONERS’ ASSOCIATION

ANNUAL CONFERENCE 2002:HOUSING LAW IN ACTION

5 December 2002Royal Institute of British Architects, London

Welcome and introductionAndrew BrookesChair, Housing Law Practitioners’ Association

Before we start, I need to make a few announcements. First, my name is Andrew Brookes and I am the Chair of the Housing Law Practitioners’ Association. Fire regulations I need to tell you about, if you hear the alarm it is not a test and you should leave by the first available fire exit. With regard to coffee, tea and lunch, that is going to be served where you have just come from, the foyer. There will be roving microphone in the plenary session in the morning and if you do want to speak, and I hope you do, then please wait for a microphone which will be brought to you. And if you could state who you are and the name of your organisation that would also be very helpful. You should each have a delegate pack and the list of allocations to each workshop is contained in the delegate pack together with the details of the location of each session. But broadly, the anti-social behaviour one is in the Council Chamber on the fourth floor, the community care and housing law is in the Jarvis Hall which is the main meeting room on the lower ground floor. The alternative dispute resolution workshop is in the Committee Room on the sixth floor and the improving access to housing advice session is in the Professional Gallery on the ground floor. You should also have an evaluation form with your pack, please do complete that at the end of the day and if you could leave it on your chair or give it to the table outside we would find that very useful.

HLPA wanted to have a conference that was open to all. We are, as you know normally a member’s organisation only but this conference is open to all. We wanted to have a conference to impart information to busy practitioners but also to discuss trends and policy announcement and issues. I am sure you all know housing is still occupying the Courts, higher and lower. As we speak, the House of Lords is going to consider housing duties under the Children Act, it has recently considered housing of asylum seekers and it is also going to consider the engagement of Article 8 and housing and human rights. The Court of Appeal very recently has looked at succession by same sex couples. So there is still much housing law going through the Courts. As well as the higher Courts, I am sure most of you here know the County Courts are full of housing cases. And anyone who has seen the statistics for the number of cases and type of cases issued in the County Court know that housing now forms a substantial part of the business of the County Courts as well. As well as the Courts, the Law Commission is busy considering and making proposals for changes in housing law and has now published two papers and I am sure Professor Partington will give us some more details of those later on.

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proposals for a Bill on anti-social behaviour. There is another Immigration and Asylum Bill going through and of course in 2002 we had the Homelessness Act. So to set the scene here there is an awful lot going on.

The other important thing I need to tell you is that Lord Rooker cannot attend today. We were informed by his office late last week of this and the reason given was that because there is a Bill in the Queen’s Speech regarding anti-social behaviour and because they are still formulating policy he cannot attend. And indeed his Department said that no-one from the Department could attend. Now anyone who has had anything to do with conferences know that Ministers often cancel but I have to say I thought that a rather extraordinary reason for not being able to attend the conference today. To be able to take the chance to put the Government’s view at the very least and hear what a room full of generally very experienced housing law practitioners who will have to use the legislation and see what they think, to use that as the reason for not attending I thought was rather extraordinary, but there you go. However, I am delighted to have instead Ben Jackson who is Shelter’s Director of External Affairs. He is responsible for overseeing Shelter’s campaigning and lobbying and he has kindly stepped in to the breach at the last minute and agreed to be our Keynote Speaker this morning so I am going to hand over to Ben.

Keynote speechBen JacksonDirector of External Affairs, Shelter

Thanks very much, Andrew, for that introduction. I was reflecting slightly on why I was asked to step into the breach. At first I thought it reflected very well on Shelter’s position, obviously so influential with Government, so right in there influencing policy that when a Minister could not attend you could ask someone from Shelter. Then I reflected perhaps in the opposite direction that those voices you sometimes hear saying Shelter has lost its campaigning edge, it is just not out there putting the critical voice, that this was a very worrying sign that we had been asked to substitute for the Minister. But I thought that probably it was more likely that I work on the next floor up from one of the people organising the conference!

However, I am very glad to be here. What I thought might be useful to do just before you enter into your kind of more detailed programme later through the day is to try and set a little bit of context. Because not only am I not Lord Rooker, I am not a lawyer and therefore I will not attempt to teach you to suck eggs. But what I could maybe do is tell you a little bit about how we, at least, at Shelter see the context on homelessness, housing and so on. I think it is quite a critical moment that we are at. A moment genuinely of opportunity but also of very substantial challenges and it is that that I want to reflect on as well as touching on a little bit about the coming year or so in terms of policy and legislation. I think it is 27052023-05:29

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important to start by saying, certainly in the area of homelessness, that we would want to acknowledge and say that there has been something perhaps amounting almost to a quiet revolution going on in terms of not only homelessness law and the Act itself but also more generally on policy on homelessness. I think you see that when you look at the combination of the Act, of the formation of a whole section within Government in the Homelessness Directorate and in the Office of the Deputy Prime Minister. The initiatives coming out of that Directorate in terms of, for example The More Than A Roof report last year which set out a very welcome approach in terms of a policy framework which was much more pro-active and positive and far-reaching in its scope. When you consider not only whatever the discussions may be about numbers and counting and so on, in our view the undeniable fact is that at least there has been a substantial reduction in the rates of rough sleeping. While not of course saying much more needs to be done and also some evidence, perhaps, showing a worrying increase or resurgence to some extent of the rates of rough sleeping, but nevertheless significant progress. When you consider the fact that the Government has set a target to eradicate the use of bed and breakfast for families by 2004 and when you consider, also, that following on from the Act and this was a big concern of ours, that when you have the legislation in place as we so often know in other areas of legislation, that often the follow through from that by Government does not resource and support the application of that law to make a difference in practice. And the Government is, I think, through the Directorate trying to do some of that. There are many, many positive changes and I think very often those of us who campaign and press forward for progressive change in areas of social policy too often forget the progress that has been made. I welcome that but I would also say let us celebrate that success and that move forward. Further in this area, the announcements that some of you may have seen earlier this week by Barbara Roache, the Minister for Social Exclusion, building on the whole agenda of particularly family homelessness. The announcement and we do not know the details of this of course, to give some form of force of law to the bed and breakfast target effectively to provide some teeth to enforcing the reaching of that target. And we are expecting a consultation document on that and we do not know much more. The parallel announcement that the Government will be doing a major kind of study and examination of the conditions in temporary accommodation more broadly than bed and breakfast. Because I think we were certainly concerned that while we had campaigned very vigorously for the bed and breakfast target and for all the work around that, that we must not forget about the wider issues and problems in temporary accommodation. And they have committed to look into that. But also to look at standards, better standards of temporary accommodation in terms of space and other things which I think, again, is very welcome. A concern we had that the setting of the target on bed and breakfast might have some kind of perverse outcomes in terms of where people were moved on to, in terms of other forms of temporary accommodation. And also some extra resources to back that. So a lot of, I think, positive change and I do

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think that it is important, as I say to acknowledge that.

But the fact of the matter is that that while we have all that positive change and that process in place at a national level and while it is also true, and I will say a bit more about this is a minute, that at the local level as the implications of the Act role out, as the work on the reviews and strategies takes place at the local level, that the picture on the ground and you will know this better than me is still very bleak and there are many, many challenges. The fact is that while there is all this movement on the questions of households and families in particular in temporary accommodation, the numbers of homeless households in temporary accommodation is at all time record levels at over 81,000. And we wait for the next set of quarterly statistics and I fear that the Shelter press office will issue yet another of those releases saying that the numbers are at record levels. So, it seems to me, that this, when summed up, is really the central challenge. It is the gap between the advances that have been made in terms of policy and legislation and delivery and change on the ground. And I think that is why your position and the work that you do is so absolutely critical to making sure that things do change. It is about the application of law, and policy more specifically, on the ground. And we certainly welcome the information and input that you have when we are doing are campaigning and policy work.

Just very briefly on the Act itself, I will not of course rehearse for this audience what the Act encompasses, but just briefly to reflect on a couple of particular points. As I said, the reviews and strategies process is moving forward in many local authorities. And people may know that Shelter has a very comprehensive kind of campaign on implementation of the Act including a network of thirty local officers who are working with groups of local authorities. And we are aspiring to at least talk or work with every local authority in England who will talk to us. There are a few who have said that they will not talk to us, I will not name names. But by and large, actually the interesting thing is the number of those who are really keen to work with us and with others in terms of now they are getting to grips with actually putting the homelessness strategies together. And the position, I think, in summary from the preliminary research we have done is that although the process is underway and some local authorities are well down the road to producing the strategy. In fact there was one authority produced a strategy even before the law came into place which was an interesting concept. But by and large that work is very much under way. And I would very much encourage those of you working around the country, if you have any opportunities either directly or indirectly with those who you work with, particularly the world of housing and homelessness, to engage in this process. Because where it is working successfully as far as we can see, it really is where there are those homelessness forums, where there are effective mechanisms to draw in others who know how things work on the ground. Because the key thing in these strategies is to capture practical steps that local authorities can make 27052023-05:29

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in improving practice. And only those people on the ground will know where those gaps are and where the most strategic interventions can be made. And that is what we are seeking to make sure happens through both the local work, our web-site and training and other work that we are doing.

I just want to flag up a couple of issues within the strategies. One that will come as no surprise to this audience but is coming across very loud and clear, is the continuing problem of the gap between social services and housing. As I say, I think this is no surprise but possibly one of the positive things about the strategies is the way in which it is bringing that issue to the surface. And where it is working well we are finding progress being made of bringing the social services and housing side together and trying to strive for a more joined up approach. So I think that is what I would say in terms of where we are at on the reviews and strategies just in terms of a couple of reflections.

The other issue, of course, is the question of allocations. And again I will not go into detail on that but I think it is probably too early really to say at this point how that is going to pan out. But our concern, of course and many of you will share this, remains particularly the wide scope that the Act still allows to exclude people in terms of allocations on the basis of unacceptable behaviour. And I would just draw your attention to the statement that was made by Lord Faulkner on the floor of the House during that process, and we were involved in the process, which did at least put out some clarity of signs to the local authorities that this was not to be embraced too widely. And I think that is an area in which we would very much welcome your observations as that goes forward. How are they using that and is it a backdoor way, basically, of returning to blanket exclusions that the Act was supposed to end? But as we know, as well as the gap between policy and legislation and practice, within the whole kind of wider framework of Government policy we are still concerned about the contradictory nature of some of the policy approaches that we see coming from Government as a whole. While we see all this raft of extension of rights and of resourcing to some extent at least, and of policy follow through, a lot of positive things on the homelessness front, we see also at the same time hugely contradictory moves by Government as part of the so-called rights and responsibilities agenda. And few of us can argue with the general notion that we all have rights and we all have responsibilities. The problem I think, is the way that that is interpreted in terms of active policy. Particularly I would obviously flag up the question of anti-social behaviour. And some of you will know that during the last year Shelter, together with others, was very actively involved in opposing the backbench Bill. Unfortunately later, given Government backing from Frank Field of moves to dock housing benefit for so-called anti-social behaviour, a measure which quite apart from the impact that it would have in terms of creating homelessness in terms of not getting to grips with the underlying problems was extremely badly thought out. And was obviously driven by a

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kind of wider political agenda of appealing, crudely speaking, appearing to want to look tough on anti-social behaviour. A problem that we acknowledge is a major issue; is one that needs to be addressed but these kinds of measures we are quite clear will do nothing to solve the problem meaningfully. They will not get to grips with the underlying problems that usually lie behind those problems of anti-social behaviour and is likely to cut right across the Government’s agenda in terms of homelessness, in terms of ex-offenders and all sorts of areas. So, we are unclear, as yet, despite the speech in Blackpool by Tony Blair in which he sort of mentioned bringing this back in, in the next round, as to whether that specifically will be taken forward. But we do know, as the Chair was saying, it is quite clear that a new raft of measures or approaches on anti-social behaviour is going to come forward in a White Paper and a promise that a Bill will follow very soon after, in the coming year. And I think our challenge collectively will be to engage meaningfully in that debate, not to be seen or perceived as denying that there is an issue and it is one. But looking at solutions that actually deliver change. Practical models, and there are those around but not replicated not funded, which try to deal with the underlying causes of many of those kinds of problems. We will wait to see whether the housing benefit measure on that front will come back in.

On the question of housing benefit more generally, as you also will know this is an area which has been long on the back burner in terms of policy reform. But has been brought, clearly, to a front burner with Andrew Smith’s announcement earlier this year that a reform process will be taken forward. And particularly ways that at least promise or the pledge is to try and both first of all simplify the system and also to give more power to tenants. Both of which, of course, we welcome and we certainly acknowledge the fact that there is desperate need for housing benefit reform, as many, many of you will know. The critical question will be about how it is implemented on the ground. And in the so-called pathfinder areas, they do not want to call them pilots because they are saying this is something that is going to go forward, we are just going to try it out on a few areas first. That is really the crucial measure, that the central issue will be whether the inadequate levels of benefit that are still the case for many, many people particularly in high demand areas but elsewhere as well will be rectified under the system which is supposed introduce a so-called ‘shopping incentive’ whereby a broader rate is set. If someone finds a cheaper rate somewhere else they get to keep the difference and they are supposed to benefit and be empowered through that process. So yes, we welcome the process of reform but certainly we will need to keep a very close eye on the detail. And again, the practitioners’ eyes and experience on this will be the critical thing. The monitoring of these studies will be absolutely critical.

Just quickly to reflect on some wider issues as well. Because alongside the whole kind of set of changes on homelessness and that environment, we also do seem to see that Government is finally waking up to the scale and 27052023-05:29

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implications of the housing crisis that the country faces. Particularly in the high demand areas of the south and the implications that this has not only for homeless families, for low income families remaining in unsuitable accommodation but also for the wider problems such as key workers and so on. So housing certainly is up the agenda and I think collectively for us that is a big opportunity. The problem is that we need to maybe change some of the terms of the debate and to ensure focus on those at the sharpest end of the crisis that we face. We also need to have an integrated approach between the high demand and the low demand areas and housing market collapse in some areas. But the fact is that at least there was significant extra resources pledged in the spending review in July, up to £1.4 billion a year by the end of the cycle. The critical thing we will be watching for there, of course, is the so-called ‘sustainable community statement’ that John Prescott is due to make in January which will be, supposedly, an all encompassing statement that will look at housing, will look at regeneration and the whole kind of vision. The whole talk of urban renaissance, although I think they stopped saying ‘urban’ because they realised that people in rural areas might be upset about that but basically, the whole renewal agenda. And it will be a fantastically important statement. And practically what we will be looking for is how the money that has been pledged will be divided up between, crudely speaking, the key worker agenda, the problems of collapsing markets in the north but also those in terms of low income housing and homeless households. And we certainly fear and we are redoubling our efforts over the next period up until that statement happens in January to ensure that those most marginalised, those most in need are not squeezed out by the important agenda on key workers and housing renewal. And that I think will be an absolutely critical test. Because there is undoubtedly shifts of severe shortage and the numbers in temporary accommodation: the numbers in overcrowding are testament to that. And the fact is that extension of rights under things such as the Homelessness Act and others will not be sufficient unless there are resources; unless there are adequate numbers of housing and housing of sufficient quality. It all needs to be joined up and that is a critical agenda that the Government is now, effectively, embarking on in a more major way but there is much ground to be made up.

Areas just quickly to touch on within the question of supply, people may have noticed that we have been doing quite a lot of work trying to promote a renewed debate about right to buy and the problems that that has in terms of the effect on supply. An issue which was completely off the political agenda, was not for discussion for essentially political reasons, is at least on the agenda of discussion. But we have no illusions about the fact that it is a contentious measure, it has all these political kind of ramifications. Our concern, obviously, is how it effects supply and we probably will expect something in some measure on that in January when the statement is made.

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anticipate this being a growing trend as well. That as more money does become available the issues on the ground that are already there about planning and where these houses are to be built and engaging local communities, local political processes and local debate about the need to provide more housing in a way that is sustainable environmentally but also it gets to grips with those problems. And the kind of nimby lobby I think will become more and more evident in terms of some of those debates.So just finally to finish off in my kind of broad overview of these issues. I think what we need to bear in mind is all that kind of context I was talking about in terms of change. We are entering some broader changes in terms of the external environment. Just very quickly to touch on two things. One is the economic context with even the Chancellor now acknowledging that we are likely to be in for a rougher, possibly very much rougher economic context for the next period. And you do not need me to remind you of the possibility that might have in terms directly on housing. The possibility that unemployment rises, even if interest rates do not, unemployment rises that a resurgence of repossessions could become a significant factor. The other impact that there may of course be is on the space for continued public spending in areas which support the enablement of rights in terms of housing, social support and so on. And it is possible that we may look back in two or three years time and see this as something, not exactly of a golden era but of an era where at least these issues were on the debate. At least they were the centre of Government and there will, undoubtedly, be a much tougher battle ahead to make sure the needs of marginalised communities, of homeless people, is on the agenda when things get tougher in terms of economic spending. The other interesting and slightly untested area I think is the question of the promises towards or moves possibly towards more devolution of power towards certainly regional bodies but also local bodies. People may have seen that kind of idea of greater powers towards local authorities and this kind of top premier league. And this is all about the public service delivery and if that is followed through. And obviously ambiguity is there with a Government that has been fairly centralised in its approach, the implications for that again is that the testing ground of these things increasingly will be at the local level and so on.

So very quickly, a round up of some key dates; almost milestones for next year. The Prescott statement in January and in July the deadline for the submission of the local homelessness strategies and what will fall out of that, whether changed approaches are going to be put into place. As Andrew was saying, in the Queen’s Speech a draft Housing Bill which may well mean that it does not come into force through the next Session although some people are saying it might do so we are not quite sure. But covering the areas of HMO licensing, licensing in areas of low demand where, of course, we will also be saying welcome though this is the same applies in many other areas. Of course the question of sellers packs which I think will cause quite a lot of controversy within the Bill. And also health and safety rating. A number of important measures a little bit late on in 27052023-05:29

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the day but nevertheless very welcome when you consider the fact that people living in HMOs are six times as likely to die from fire as those in other forms of accommodation. We will need to make those arguments and there will be opposition. There will be the consultation recently announced on the standards in temporary accommodation early next year. There will be the White Paper on anti-social behaviour and there will be the whole question of housing benefit reform. So there will be many issues in terms of further changes that directly or indirectly have significant impact on the world of housing and homelessness and of housing and homelessness law. And I think for us, anyway, the challenge will be to engage in those debates and to try and secure the best outcomes for homeless and badly housed people. While also keeping our eye on the question of delivery of those measures that are already in place and that balance I think will be the critical area.

Sorry, I have not left much time for questions but I am quite happy to answer questions.

Andrew Brookes

Ben has kindly agreed to take a couple of questions if there are any questions from the floor? If there are if you could put up your hand and we have a microphone if you could wait until it arrives.

James Bowen, 6 Kings Bench Walk Chambers

One of the things that Ben was talking about was trying to eradicate the difference between the policy and the delivery of that policy. Those of us who, as it were, are the coal-face of the litigation to do with the failure to deliver are concerned that although funding may be put into the delivery there seems to be a complete inadequacy of funding in respect to resolution of disputes as to whether delivery has been provided. In 1996 or possibly the beginning of 1997 before Labour got into power, Gerry [?] and I were lobbying Paul Boateng who was at that stage Shadow in relation to some of the civil procedure rules changes. And it was clear that the Government in Opposition then had no consideration as to funding implications of changes. And it appears to be the same, for example, with the Homeless Persons Act. There is going to a whole new raft of applications in the County Court and no consideration and no funding considerations appear to have been given to that in terms of either increasing jurisdiction and/or funding of the Courts to deal with the additional work they are going to have to do. Whereas in, for instance, the High Court and the Administrative Court it was especially enlarged to deal with something like the Human Rights Act and is being enlarged at the moment to deal with the implications of the reforms in relation to immigration law. So really, I wanted to know what your views are in respect of that?

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Ben Jackson

Other than just to say acknowledging the point, I think it is absolutely critical that there are those resources there. And it is certainly an issue that we have raised so I would agree with it and I think it is very important.

Andrew Brookes

Any other questions, one more here.

?

Ben referred to the interface between social services and housing departments and I think within this audience we have a lot of experience of bad practice. In the new Code of Guidance we have little more than platitudes about the importance of co-operation. Is there not scope for much clearer guidance on good practice and could Ben share with us some good practice which we can rely on in other cases?

Ben Jackson

We are actually looking specifically at this area to see whether we can gather together more … some of the evidence that we are getting in at the moment from the local level of the Homelessness Act implementation work that we are doing. I was up in Birmingham the other week talking to our people who are working there. As I understand it, the kind of spread of measure, the kind of things that we need are always at kind of different levels, aren’t they? I mean we are trying to bring together these more specifically. There are some examples of kind of useful protocols between housing and social services which look at how you deal with cases and so, so maybe that is something. I think for us, actually, increasingly it seems that one of the most important things is just reaching very much the sort of front-line social workers and we are actually looking at this at the moment. Because it is still changing that kind of culture and mindset: that is to do with housing and this is to do with us. So I mean, I do not have a kind of list of specifics. We are trying to draw some of that together and one thing I would kind of point you towards if you are not already aware of it and some of this is on our web-site that we have developed, the Homelessness Act web-site. www.homelessnessact.org and that actually includes some discussion threads from people within local authorities which is trying to share good practice about ways in which they have dealt with this issue. And that is the sort of thing we will be drawing on but that is rather an inadequate answer other than recognising that we need to do something bringing all that together. Possibly part of that might be to draw out of that whether it is formally through Guidance but it is also something that we are working with the Directorate on to try and encourage them to actually push local authorities in that direction. And also maybe just to flag up practically, we also have a series of regional conferences in February and March next year which will include specific sessions on social services. Andrew Brookes

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Thank you Ben. We are going to draw this session to a close now but once again thank you to Ben. We are going to play musical chairs now because our distinguished panel is now going to step up and Tracey Bloom of Doughty Street Chambers is going to Chair this session.

Tracey BloomBarrister, Doughty Street Chambers

My name is Tracey Bloom, I am Chairing this session which is divided into two parts as we have a coffee break, you will be pleased, to know in about forty minutes. I do not know if anyone has actually said this but if you have got your mobile phones on please turn them off because it is very irritating and similarly with pagers, we would be very grateful.

The panel that we have got is indeed a distinguished panel and if I can just briefly introduce you to the five speakers in no particular order. We have Mike Biles who is the Independent Housing Ombudsman. He is the second person to hold this office; he has held it since 1July 2001. He was Head of Law at the Southampton Institute and he is a member of the Chartered Institute of Arbitrators and also of the Chartered Institute of Housing. He is also a member of the Leasehold Evaluation Tribunal and he is going to talk to you a little bit about ADR when his moment comes.

We have Caroline Hunter here who is sitting next but one to me. She was a barrister and is still a door tenant at Arden Chambers and as she put it on her CV she ‘escaped to academia’. She has recently been doing research into tackling anti-social behaviour for the ODPM and also looking into housing possession in the County Court and the perceptions of black and minority ethnic defendants; that is for the Lord Chancellor’s Department. And I think many of you will be familiar with her name because you will have seen it on a number of books, not least the Hunter and Partington on Housing Law. As we have both of them sitting up here you may feel rather privileged. She is also the Deputy Editor of the Housing Law Reports and the Encyclopaedia of Housing Law, which I am sure many of you find as a stalwart to your practice.

We have Professor James Driscoll sitting next to me. He is both a practical professional practitioner of law but also an academic. He is a consultant solicitor at Trowers and Hamlins which some of you may know of and he is an advisor to them particularly on the residential landlord and tenant field. He is also a Professor of Property Law at Southbank University and has written many books and articles on the subject of residential land law and he holds academic positions both here and in the United States. And he is going to give us a little overview of the new Commonhold and Leasehold Reform Act, which I think will be very useful, and also to talk a little bit about the pros and cons of a single tenancy.

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and I am not sure that he needs any introduction to many of you, I think you will be very familiar with who he is. He is the Law Commissioner who is responsible in the greater part for the two consultation documents that you have all, I am sure, been spending your time reading which are here and have gone out of consultation now and the time is up for you to have put in your comments. He is on secondment from Bristol University where he is a Professor of Law. And what he is going to do is after the other panel members have spoken he is going to comment on what they have to say and also give us a little update as to where the Law Commission is at today.

And the final speaker, at the far end, is Wendy Backhouse who I do not know whether she needs any introduction because of course you will be familiar with her having been the Chair of HLPA for six years until 2000. She is also a partner at Hodge Jones & Allen and she sits as the Deputy District Judge.

The way that we have formulated this morning’s discussion, because it is quite a lengthy period of time, is that what we asked the speakers to do was each of them to talk on what reform they would most like to see in housing law. I asked them if they would all talk for five minutes but I think probably it will be a little longer than that. And I imagine that that will probably take us up to the coffee break, I know it is already 10.55, it may even be that Martin Partington will be after the coffee break but I do not suppose he will mind that. There will be the opportunity for you all to ask questions directly following on from what is raised in those talks and you may wish to give them to me in writing over the coffee period if you prefer to. And pending how long that discussion goes on, there will then be the opportunity to have more of a kind of question time forum where even if those matters have not been raised by the speakers if there are issues that are burning in your heart that you feel you have a sitting audience here with whom you want to discuss. And I do not mean the latest case that has come through your door that you want some technical advice on, I mean a policy issue or a wider issue that you would like to hear discussed in this forum, this is your opportunity. Can I just say, when it comes to questions please do say who you are and where you come from because I think it helps to understand where you are coming from in your comments.

So the first speaker we are going to hear from is Wendy Backhouse.

Wendy BackhouseHead of Housing Team and Partner, Hodge Jones & Allen

Well thank you very much for asking me to speak at the conference and I am very pleased to see HLPA hosting this kind of event. I am going to talk about possession proceedings, the staple for most of us of our practice. But it seems to me one area of litigation that has been almost entirely ignored as far as the Woolf Reforms are concerned. Yes, we have Part 55 27052023-05:29

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but has it made a blind bit of difference? I do not think so. Think about your own County Court on possession days and I am really talking about possession cases by social landlords. It is bedlam, isn’t it? Too many people cramped into too small a space. Housing officers desperately flitting between tenants and different courts. Tenants trying to find duty solicitors. Ushers screaming out cases over the general din. You have got what forty, sixty cases listed in a morning. Of that number a small number of tenants will be present; an even smaller number will have their own legal representation. Sitting as a Deputy District Judge I have heard a number of possession cases in various London County Courts and I think the experience is fairly depressing. Cases tend to be presented these days by housing officers, not solicitors. This is not a general bash of housing officers but I have to say that most of them that I have seen are pretty poorly trained and have a fairly tenuous grasp of the law or procedure. They have just been told to come along and get a possession order and indeed that is what they tell you. What is the reason for most of the cases being brought, on grounds of rent arrears anyway? Housing benefit probably in what seventy-five percent of cases? Generally, if the Court is alerted to the housing benefit problem there will be an adjournment so there are huge swathes of cases being adjourned again and again and again for housing benefit to be determined clogging up the Court’s entirely unnecessary litigation.

I am also struck by a complete inconsistency of approach between landlords. You do not need me to go on at length but there will be an RSL that relies on Ground 8 the minute the arrears reach eight weeks. There will be others who only use Grounds 10 and 11. I am sorry, you know what I mean, under the 1988 Act. Some housing officers will ask for a suspended possession order where the arrears are £400 and reducing because the tenant is keeping to an agreement and yet others will gladly agree to an adjournment on terms with arrears of, say £1700. I am also struck by the inconsistency in judicial approach particularly for things like service of the notice. How many times do you ever see a witness statement verifying the service of the notice? Not many. Usually you are asked to accept a stamp on a copy of the notice signed by someone who is not at Court saying ‘yes they posted it through the letterbox’. And the person before you presenting the case says ‘oh I recognise that signature’ and that is supposed to be good evidence of service. And some judges accept that. And I think that the reason that judges sort of give in when presented with inadequate evidence is that this is just a conveyor belt; there is simply too little time to give anything like proper consideration to each case. As Andrew said in his opening remarks, possession makes up a large part of each Court’s work. Thousands of cases are …Tape change

… gets two hours of judicial time, on average, by the time that the judge has looked at the papers, allocated it, given directions and finally heard it.

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I find it very puzzling as to why there is simply no scrutiny of this whole process. Every other area of litigation has been looked at with a view to avoiding litigation, reaching ways of resolving disputes without it. I think it is quite ironic that for cases which tenants bring against their landlords, principally to do with disrepair, there has been high level pressure for some sort of pre-action protocol and one has now, I think, almost finally been approved. And yet there is no similar pressure for a protocol in possession cases. In the early days of the Woolf Reforms there was talk of a rent arrears protocol but the LCD tell me that nothing has been heard about that since at least March 2001. I do not think protocols are the be all and end all but it seems to me that something has got to be done to curb social landlords or to control their pre-action, pre-litigation behaviour in the same way as all other litigants have had to look at the reasonableness of their conduct. There is a host of advice to social landlords about good practice. I have set out in my notes various sources including excellent briefings from the Chartered Institute of Housing. I would say that largely that is ignored.

It seems to me, therefore, that some sort of protocol is urgently required and I set out in my notes my thoughts as to what that might encompass. I do not have time to go through it in any detail but I would say that the obvious first thing is early intervention to stop arrears accruing in the first place. For example: action as soon as the housing benefit claim stops, no proceedings if there are outstanding housing benefit issues, no proceedings if a tenant has made and is keeping to an agreement, full information given to the Court about the tenant’s circumstances and some sanctions if that is not provided and lastly, I think some guidance to the judiciary.

I was fairly amused to read in the Law Commission’s first consultation paper that social landlords were complaining about lack of judicial consistency in anti-social behaviour cases. I think that largely means that the judges sometimes look at the evidence! But if guidance is needed, then it is certainly needed in possession cases so that we know that there are some overall schemes for when it is appropriate to make a possession order suspended or whether it is appropriate to adjourn generally. I know the Law Commission, along with others in the past, have suggested some kind of two-stage procedure. I am not convinced that that is the answer without the kind of reforms pre-litigation that I am talking about.

Moving on to anti-social behaviour cases, I think we are at a situation where there is a near hysteria about nuisance. There is already a plethora of provisions to deal with the problem with more to come, we are told. I fully accept that it is a serious problem but I think there is no recognition that anti-social behaviour takes many forms and that different remedies are appropriate. In my experience in practice and hearing cases only a small proportion of nuisance cases involved serious allegations: violence, threats of violence, racial harassment. The bulk of cases are to do with noise, loud music, children, rubbish, verbal abuse, that kind of thing. I am 27052023-05:29

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not saying it is not unpleasant and upsetting but it does not necessarily require litigation. I also think that the focus on anti-social behaviour is causing every tenant with a grievance against their neighbour to complain about anti-social behaviour. And my worry is that housing officers are simply not trained or equipped to investigate cases properly to decide what the serious cases are and collect evidence in those cases properly. And in the cases which actually are less serious and capable of some resolution without litigation, of taking steps to ensure that that is happening. In fact, worryingly, I see many housing officers adopting a somewhat partisan approach where they accept one tenant’s allegations over another where there are counter-allegations. It seems to me that a protocol is needed as much for ASB cases as for rent arrears. And I set out at paragraph 4 of the notes some ideas of what that might contain: again, early intervention when there are complaints and use of mediation wherever possible. Provision of support for tenants with mental health, alcohol, drug problems, etc. If you put people with those problems in a block full of elderly people you are asking for problems, particularly if you provide no kind of support. A full and objective investigation of complaints, etc.

As I said, I do not think protocols are the only answer or, indeed, go to the root of the problem. My big wish for housing would be for a reform of the housing management ethos amongst social landlords. It seems to me that over the last few years the pendulum has swung completely to being a debt collection agency. It must be a very depressing job, frankly. I would not like to be a housing officer and there is no wonder that there is a huge turnover and that the quality of staff that can be attracted is fairly low. If housing officers were encouraged to see themselves as service providers taking a holistic approach I suggest that they would have better job satisfaction, there would be less litigation and more people kept in their homes. Thank you.

Chair

Well I think we all agree that was a good start to a thought provoking morning, I hope. Mike Biles is going to address you next. Thank you.

Dr Michael BilesIndependent Housing Ombudsman

Good morning colleagues. Can I say first of all thank you very much indeed for inviting me here today, I am very pleased to be here. I have, apparently, according to my brief five minutes to tell you about one reform in housing I would like to see, so let us see what happens.

It is alleged that people who practice at the Chancery Bar are pedantic and this is exemplified by a story of a barrister in chambers who looks out of the window and sees someone making off with his bicycle. You may not see much veracity in this story. He rushes to the door and shouts out ‘stop,

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alleged thief’!

Can I just say that that is me and I am the Housing Ombudsman according to the 1996 Housing Act. It may sound pedantic, I am referred to as the Independent Housing Ombudsman but I am actually, according to statute, the Housing Ombudsman and there will be a point that I will make about that very shortly. But generally speaking I thought I would speak about the Independent Housing Ombudsman’s Scheme and ADR. And part of this pedantry, by the way, is that there is the Independent Housing Ombudsman’s Scheme, there is the Independent Housing Ombudsman Limited, there is the Housing Ombudsman and there is this kind of corporate team that deals with cases called the Independent Housing Ombudsman. An Independent Housing Ombudsman means an Ombudsman who deals with housing which is not dependent. It is a bit confusing. And it is very confusing for people who ring us up and say ‘I have got a housing problem, you are the Ombudsman, why don’t you deal with it?’ And we say ‘because your landlord is local authority’ or we say ‘your landlord is a private sector landlord who has not voluntarily joined our Scheme’. Stay tuned for a reprise on that particular point perhaps later. In terms of pedantry, I met this man and I will tell you more about him in a minute. But you may have seen this cartoon in The Times not so long ago and this man is speaking and saying ‘Members of the Bar, Alternative Dispute Resolution or ADR is here to stay. A simple torts claim might take five years and £50,000 to come to trial. ADR promises a quick, simple and lawyer free path to justice which is why you must learn to recognise it and squash it like a bug!’ You will not find this in your pack, for obvious reasons. And may I say we prefer Appropriate Dispute Resolution to Alternative. The man I met at Lincoln’s Inn, it was always called New Hall when I was at the Bar as a student, it is now called Great Hall I think. Anyway there was a conference there to listen to the Lord Chancellor speak about changes in the law. And I sat next to a very nice man before it started and it turned out that he had been a QC for longer than I had been on this planet and we were talking very happily until he saw my name badge and it said what I did and he said ‘I don’t approve of you. I think that if a chap has had a wrong done him he has the right to go to Court and put it before a judge’. Well, here we are; I am arguing in favour of ADR and an increased role for ADR against some people who actually do not agree. Many others do, I am very pleased to say.

So what should I say to you very quickly in my presentation today? I am going to say that the numbering did not come out on this computer! And presumably those two bullets have been sent by the man I met at Lincoln’s Inn! First of all, I will just say something very quickly about the rising tide of ADR. Think about the Housing Ombudsman’s role in that. Say something briefly about the Law Commission and then something very briefly about our portfolio and how that might fit and what it is that I am proposing by way of reform according to the Christmas wish list that we have all been posed here on the panel today.27052023-05:29

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The rising tide, there will be others who will speak this afternoon about this and there are other cases like Railtrack and Dunnett, for instance, but I just choose Cowl because this is the one that most directly relates to housing. There is one place in which it was reported and you may know that this was related to a residential care homes case which went to judicial review. And if you look at the report it suggests that this kind of escalated into judicial review before anybody realised what had happened. And Lord Woolf said ‘sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible’. And ‘lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. The importance of this appeal illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible. The courts should make appropriate use of their ample powers under the CPR to ensure that the parties try to resolve the dispute with the minimum involvement of the courts. To achieve this objective the court may have to hold, on its own initiative (and Lord Woolf recommended that we did not use Latin, remember) an inter partes hearing at which the parties can explain what steps they have taken to resolve the dispute without the involvement of the courts. In particular the parties should be asked why a complaints procedure or some other form of ADR has not been used or adapted to resolve or reduce the issues which are in dispute’. This is clearly a very strong steer from Lord Woolf in Cowl picking up, of course, on the message from the Access to Justice which was his report, obviously, as well. And when the Housing Ombudsman was actually created on April Fool’s Day 1997 Lord Woolf was invited to attend the launch. How you launch an Ombudsman I do not know, it sounds quite painful; I am glad I was not there! But he could not come and as you know, like David Niven who could not go to the awards he sent his fridge but Lord Woolf sent a letter. Do you remember that sketch? No! I am obviously getting far too old! Lord Woolf sent this letter to my predecessor and said ‘In Access to Justice I made it clear that I attach great importance to extending ombudsman schemes because I was convinced as a result of my enquiry that they offered many members of the public the most satisfactory way of achieving a just resolution of their complaints’. ‘This was especially true in the area of housing’. ‘In many situations an ombudsman scheme is more likely to produce satisfactory results’. ‘The relationship between a tenant and his/her landlord is a continuing one’. And ‘Relations between tenants and their landlords need to be as good as possible’. ‘Litigation’ he continued ‘in the courts is adversarial and therefore almost inevitably damaging to that relationship’. ‘Litigation can also often be extremely expensive and result in resources which could be much better used to improve accommodation being unconstructively used to meet legal costs’. So there is a continuum of the theme of argument there, I submit, from Access to Justice through Cowl , through that kind of statement to my predecessor.

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The Law Commission said it was beyond their remit to discuss a housing court but they could address things like Dispute Resolution and Alternative Dispute Resolution. In the context of Alternative Dispute Resolution they mentioned at that particular paragraph some organisations that are involved in ADR. One is the Independent Housing Ombudsman Scheme in respect of its core business of dealing with complaints from tenants of RSLs and private sector landlords who have voluntarily joined. The other is something called the Tenancy Deposit Scheme and they mentioned some other people that I will not mention. It just so happens that yesterday I was at a conference and it was introduced by somebody called Lord Rooker, of whom you may have heard! But never seen by the sound of it! He was talking about the new Housing Bill and he said it was going to deal with controls on HMOs, sellers packs and licensing in low demand areas and he said some other things which I forget. I mean you could have said to him ‘well actually what about the sliding scale fitness standard and the legislative framework for housing inspection?’ but I was very tempted to leap up and say ‘and how about then some legislation on the Tenancy Deposit Scheme?’ The consultation document was actually published last week and really, in terms of expecting landlords in the private sector to go for a voluntary scheme is a bit seasonal because it is a bit like enfranchising turkeys at this time of year. I think, therefore, that that would have been an opportunity for him. I did not leap up because I had been advised that Ombudsmen must be bland and uncontroversial. Well I can presumably do one of those! Bland, I mean!

The Law Commission, and I have put this in your pack to save me having to chant it through and you have probably all read it anyway and you know it off by heart, but elsewhere in that same part where they refer to ADR services, said that in civil disputes really the court should be the last resort in terms of housing. I agree that possession cases should be a matter for the court, not for an Ombudsman. That is really not what Ombudsmen are designed to deal with, they are designed to deal with complaints from consumers against providers and we are there to help that continuum of the housing relationship which I have cheekily relabelled 6.179 in Martin’s report. And the report says there are other housing contexts in which ADR might be useful and again I have produced it on a piece of paper because I was told my time was brief. But, obviously, I would like you to read that if you have not read it before and also some suggestion about mediation might be a possibility in relation to discretionary grounds for possession and in cases of suitable alternative accommodation.

If you look at what we do as the Independent Housing Ombudsman’s Scheme or Service, we will deal with complaints by way of a traditional kind of investigation process, although we now have three tracks to try and expedite matters appropriately. We can put matters to arbitration, to mediation, to adjudication with a hearing, adjudication on the papers (which is what we do with TDS disputes) or indeed neutral assessment. In 27052023-05:29

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other words we have a portfolio of appropriate dispute resolution at our disposal. I therefore thought it appropriate to write to Martin, I hope you got my letter Martin, to say ‘considerable encouragement should be given to the appropriate use of ADR in the resolution of disputes about housing matters. IHOS offers a comprehensive ADR package appropriate to the range of disputes that typically arise in the housing context. If the Law Commission’s proposals in this context were to contribute to the development of a centralised ADR service for housing, IHOS would be ideally suited to that purpose’. So therefore, my single recommendation or desire for housing reform for these purposes has three facets. I would like to see the Housing Ombudsman as the Ombudsman for Housing. I would like legislation to introduce the Tenancy Deposit Scheme and I would like to see the Ombudsman’s Service being able to contribute, if that were proper, to ADR service for housing. Thank you very much indeed.

Chair

I am sure that Martin will be able to respond to the letter when his turn comes! Thank you for that Mike, that was both neither bland nor uninteresting, I think you would all agree. We now turn to Caroline Hunter who is going to address you next with her Christmas wish list.

Caroline HunterSenior Lecturer, Sheffield Hallam UniversityBarrister, Arden Chambers

Well, when I got my brief, five minutes on my one single housing reform, I sort of set off into fantasy land. And I thought, gosh if I could bring in one law and I was Housing Minister and what could I do, well I thought we could start off by having an adequate percentage of GDP to be invested in housing. Because, actually at the end of the day, what really makes a difference is the provision of housing stock for people who need it and the spending of money on the problem. But I thought, well that might be a little ambitious so how about housing benefit to be paid on time? That does not seem terribly ambitious but perhaps just as unrealistic as the first ambition. So I thought I had better get real here and I went off and thought Law Commission, that is really what they want me to talk about. What is it out of the Law Commission proposals that I would have as my one reform? And I am going to start by saying what I would not have before I get on to what I think is the one I would have. And I would not have, although I would not decry it, is the approach that is in the Law Commission document which is this kind of consumer approach. I think it has got a lot to be said for it, and the use of standard written agreement would be a particular boon. Particularly in the private sector where there are so many landlords who have not got a clue what they are doing and at least if they could have access to a simple agreement that they understood it might be an improvement. One that I am not going to alight on is the particular type of agreements. I do not know if Martin has got any super-duper names for

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them yet. I know I am not going to win that prize but the type 1 and the type 2, as we know them at the moment, we can have arguments about them and their detailed contents and what the type 2 should look like. Should it have a fixed term? When should landlords be able to evict? What that time period should be? But again, that was not the one I alighted on. And perhaps a more definite no would be to some of the proposals on anti-social behaviour. And I think having heard previous speakers, I am not alone on this and perhaps we can have one room where we will have consensus on anti-social behaviour. That is that we do not need more law, we do not need yet further changes. We have got landlords who cannot currently use the law that they have got properly. They certainly do not need to be given more tools to punish errant tenants with so I do not want to see yet more proposals for people to move up and down tenancies and in and out and all the proposals that have come from the Law Commission and from the ODPM. So those are my ‘nots’.

What is the one that I actually do want? Well, I think it is the simplicity and that is what is striking about the Law Commission’s approach. We have got two agreement types, whatever their contents might be, applicable to the right to occupy premises as a home. Let us get rid of all that common law stuff, the lease licence distinction and so and then map on to existing agreements. And I think this is crucial. If we keep with just adding another layer on to our existing layers we are not going to get anywhere near simplicity. So why this one particular reform? Well it is probably rather a selfish wish, I might think, and it comes out of experience of writing and teaching. The housing law books, some of you may have read some of them, I do not advise you to read all of them certainly not as bed-time reading unless you are desperate for sleep. But they get longer and longer. Every time we have a Housing Act we do not ditch a chapter, we just add a chapter. Every time we have a case on let as a separate dwelling to take an example, in the Encyclopaedia it has to be noted to three different Acts which all have their own definitions that apply. So in terms of my workload I would just like shorter books and less to do, similarly teaching. Most of my teaching is not lawyers; it is housing officers and hopefully addressing some of the issues that Wendy raised about badly trained housing officers. Well you try teaching them how housing law works and the complexities of security of tenure. It is very difficult. You have to start with the common law and then move on to the statutory provisions. So maybe this is just a selfish wish.

But I think if we just think about the complexity of the current position and I just started to list this. And this list could have gone on for pages but I only had five minutes and I thought I would keep it short. You can begin to see the problems that we have. We have got Rent Act tenancies, we have got Housing Act assured and assured shorthold, we have got Housing Act secure, we have licensees and we have got people who fall outside of all of these. And as I said before, we do not want another layer to be grafted on to this to just add to the list and add to the problems of trying to 27052023-05:29

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understand it. So my one wish: this simplicity that has been proposed by the Law Commission.

And it seems to me there would be a lot of winners if we adopt this route. Occupiers and landlords would be winners. They might at least understand their rights. If it was then combined with standard written agreements both the landlord and the tenant might well be in a position to know what their rights are. It would also make life a lot simpler for advisors who are usually the first point of contact, not so much the housing lawyers. In fact research we have just finished for the Lord Chancellor’s Department looking at possession cases shows that most tenants would not dream of going to see a lawyer if they get a possession summons land on their doorstep but they would go to an advice centre, CAB and the like. And therefore this would make their task much simpler in giving clear advice as to what people’s status is and what they should do. Clearly it would also make life simpler for judges. They would be in a position again, of not having to make difficult cases on status but hopefully then look closer at applying the law justly and fairly and perhaps, as Wendy has said, with a little bit more consistency.

Losers; well who might be a loser in this? Well I am afraid it might be us lawyers, there might be less need for us but I do not think that is a good reason for not going ahead and moving forward in this way. It seems to me that it is very easy to have special pleadings for exceptions when law reform is proposed. ‘Oh we must make an exception for this and that is a different case so we should put that on one side and have a special procedure for it’. And what I would say is I think that should be resisted and that we should encourage the Law Commission to move to a position where every occupier of housing can actually describe their rights in relation to security of tenure and be confident in knowing that if they turned up in Court they could understand and follow what was going on. Thank you.

Chair

Thank you Caroline. I think yet more comments for Martin to deal with when his turn comes. It is 11.30 now. What I was going to suggest is that rather than asking the other two to speak now that we have a coffee break for twenty minutes only instead of half an hour. Because it seems to me that, I know you are all dying for coffee, but also there is an awful lot coming up here and I think you would be glad to have as much time as possible to ask questions. So if we start again at 11.50. Thank you.

Chair

… it is even more sensible to get on with the speakers than to chat. You can chat at 1pm over your lunch. James Driscoll is our next speaker and I will pass you over to James.

Professor James DriscollConsultant Solicitor, Trowers and Hamlins

Thank you Chair and good afternoon colleagues. I am very glad to have the opportunity of coming along and talking to today. I am going to talk about a different type of housing development; that is

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the Commonhold and Leasehold Reform Act. And I will be delighted to have the opportunity of joining in the discussion which I imagine will be dominated by the proposals in the Law Commission papers on housing law reform. Which, of course, does not touch the area that I am dealing with, at the moment at any rate.

When I was a law student I think about the only thing that interested me about property law was wondering what it might have been like to be a lawyer around 1926 when the 1925 legislation was coming into effect. And I have long speculated that the rate of early retirement amongst lawyers would have shot up at about that period. In the course of my career I do not remember a time when there has been so much housing and property law legislation. In just the past year we have had the Land Registration Act 2002 some of which will inevitably effect housing as it effects the conveyancing market. Specific provisions on leases, some fun stuff on adverse possession, a huge learning curve there for lawyers. We have had the Homelessness Act of 2002 which, as you know, is introducing changes to local authority duties to the homelessness and also making a number of important changes to the allocation of social housing. Then the Commonhold and Leasehold Reform Act of 2002 had Royal Assent on 1 May but, as I will be showing, most of it is not yet in force. And I will try and deal with the reasons for that delay in just a moment. I hope I got the name of the next Act right, I put an exclamation mark by it just in case I did not. The Police Reform Act 2002, I think that was the Act that has changed procedures on anti-social behavioural orders. I think it was earlier this week that registered social landlords now have the power to apply for such orders. And then lying behind all of this, of course, we have got the continuing impact of the Human Rights Act 1998; lots of case law, lots of consultation papers and just masses for us to read. Other developments, well you will be hearing lots more, you have already heard quite a lot about the Law Commission project. Martin Partington will be updating us on that project in just a moment. Behind that we have the department that keeps changing its name, it was the DTLR, now the Office of the Deputy Prime Minister: their consultation on anti-social behaviour. Like Caroline I rather feel that hardly a week goes by without some new initiative being announced on anti-social behaviour. And I think you reach the point where you wonder, well let us just have a look at what we have at the moment and see whether those powers are effective or not.

Now more on the consultation papers later on. If these proposals prove to be widely acceptable as one hopes that they will be, the implementation of them will obviously transform the law on rented accommodation. I am sure that everyone would support the idea of a codified, simplified piece of legislation to which one could look and find most of the answers, if not all of the answers, to some basic questions such as what security do have on my home? What do I do if the landlord wants me to leave? And so on. We heard earlier about the draft Housing Bill that was announced in the Queen’s Speech recently. I read it as suggesting there may be measures to introduce a system of licensing for private landlords, also in categories of private landlords, more anti-social behaviour measures and possibly a fitness standard. The seller’s pack, I thought the Government had dropped the seller’s pack idea but apparently not.

So Leasehold Reform, let us have a look at that in the few minutes that I have. I will be coming back to this point briefly in a moment but commonhold, as you probably know, is a completely new system for the ownership and management of interdependent buildings, like blocks of flats. Colleagues, there may never be a commonhold in this country because commonhold when it is introduced, probably at the end of next year or early 2004, will be entirely voluntary. So I would strongly advise people who are thinking about writing books and articles on it to think again because it may not sell. The Leasehold Reform provisions in the new Act, once they are fully commenced, will have a huge effect on the legal position of leaseholders. And I was struck by the Government’s consultation paper which led to these reforms published four years ago in November 1998 that there are over two million leaseholders to flats and houses in this country. I think we all understand the reasons why people can only own for practical reasons the lease of a flat rather than a freehold. But huge numbers also of leasehold houses so whilst the commonhold provisions might be a flop the changes to leasehold law are huge, in my view, and would make a very significant improvement to the position of people who have such leases. Some of them, of course, are in the social rented sector; people who typically exercise the right to buy, right to acquire their flat. There are specific issues which effect them. And without wanting to sound presumptuous I often feel that there really is a role here for lawyers. I know that advice giving agencies find it quite difficult to find solicitors who will take on leasehold law and it 27052023-05:29

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is partly because of its perceived complexity. And my goodness it is quite complex but it is an interesting subject and I think it is one where lawyers really could make a very valuable contribution to that section of the community if they are willing to take it on.

So what is the new law? We have had the Commonhold and Leasehold Reform Act. The Government has stated in its consultation paper published four years ago, and I do not think I have ever seen this in a Government paper before, that it considers the leasehold system to be an unsatisfactory system for owner-occupation. Long term the Government hopes, idealistically in my view, that commonhold be the long-term solution. There is not time to talk about commonhold except to re-iterate that it is a new form for the ownership and management of blocks of flats and other interdependent buildings. People who buy into a commonhold will have freehold ownership of their flat or unit and will automatically be members of the commonhold association which would own and manage the common parts on their behalf. There is no superior interest within the commonhold so that is one of its chief characteristics and that is one of the reasons that the Government thinks it is preferable to the leasehold system. Commonhold is not just an academic idea, it is established in many other countries, the United States, Canada, Australia, in fact in Hawaii they have both a commonhold and a leasehold system running side by side. And I think that that is a ripe area for academic research and I am very hopeful that I can persuade a funding council to send me out there for some preliminary fieldwork at some stage. The implementation of commonhold will not take place until, well the Government says at the earliest December 2003 so it will not be surprising if it creeps into 2004. Once it is there, there will be opportunities for property developers to build on a commonhold rather than the traditional leasehold system. And opportunities too, for leaseholders who want to, to convert to a commonhold.

Leasehold Reform is the other side of the equation, the other part of the Act. The Government there, I think, sees commonhold as the long-term solution, decades, maybe hundreds of years away, in the meantime something needs to be done to improve the position of leaseholders. So what do we have? Well, in as much as anything that could be described as radical in Part 2; it is this new right to manage. It is similar to the right to have housing management delegated to secure tenants of local authorities. It applies to qualifying leaseholders of flats. All landlords are covered with a notable exception of local authorities but it does include registered social landlords. So if you have got an RSL which has a block of flats which are predominantly held on long lease as the tenants have acquired them under the right to buy, right to acquire, the right to manage will apply to those leaseholders. One of the reasons I predict it will become popular with leaseholders is that the qualifications are the same as they are for enfranchisement. So you would be aware that leaseholders, if they qualify, can buy the freehold compulsorily but they have to pay a premium. It can be a very expensive business. Given that the qualifications for RTM, I think that next year lawyers should be saying to leaseholders ‘well, okay we can go ahead and buy on your behalf if you want to. But if your real gripe is a quality of management or mismanagement in the block, why not think about the RTM? It is a simpler solution’. As you can see, it is a no fault based right. It is no good a landlord saying ‘oh I am a good landlord, I am really upset that my leaseholders do not like me’. It would apply to a landlord who has got an industry award for the quality of their management. No fault has to be shown. And the effect of the RTM is that leaseholders take over really all the management functions relating to their block of flats.

Moving on, enfranchisement and lease extension. I mean I am just summarising what is quite a complicated area of law. There are some changes to the qualifying rules. One notable change is that the requirement that leaseholders have to be resident in their flats has now gone. So it is certainly easier now for leaseholders to exercise these rights than was previously the case. And I know, talking to the Leaseholder Advisory Service, that there is certainly an upsurge in demand for advice on collective enfranchisement and lease extension. Valuation has been simplified. When leaseholders enfranchise one of the things they have to pay is this rather curious thing which you may have come across called ‘marriage value’. Have you come across that? One of the changes made by the Act is that there be no marriage value payable if the leases are all more than eighty years long. We were trying to explain this to a group of leaseholders recently and a number of them complained to me afterwards and said that they thought it was discriminatory and why should only people who are married benefit from these changes? But of course it is nothing to do with matrimonial law, it is a valuation concept. Colleagues, most of these changes came into force on 26 July of this year.

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Now, service charges. I have yet to meet a leaseholder who is happy with their service charges: waking up in the middle of the night worrying about whether the freeholder will be able to manage on what they are paying. There is a great deal of dissatisfaction with service charges so I think the tightening up of the law here will be welcomed, certainly by leaseholders and also by good landlords and there are such things as well as bad landlords. Improvement charges, once all this is commenced, will in future be capable of being challenged in the LVT and there is an issue there really for people who have exercised a statutory right to buy. You may have come across this in practice because people with right to buy leases who may not have been that well advised when they instructed a lawyer to do the conveyancing have to contribute towards the costs of landlords improvements to the block. And there have been many instances of former council tenants, now leaseholders, facing huge bills because the landlord is able to charge improvement charges and it has previously not been possible to challenge those charges in the leasehold valuation tribunal, which I have abbreviated to LVT. In future it will be possible to challenge improvement charges and, frankly, local authorities are going to have to rethink many of their practices in relation estate management and development. Other leaseholders’ rights are the new rights to be consulted before landlords want to start spending their money. Landlords will in future be required to give notices in prescribed form for leaseholders explaining to them what their rights are. There will be a statutory right to withhold payments if landlords do not keep to the new arrangements and there are going to be changes to the law governing forfeiture of leases which I think many of feel are long overdue. There is not space to cover all of this now but just briefly forfeiture will not be possible for small sums of money which the Government suggests a figure of £350. And in other cases forfeiture will require the landlord to go to a leasehold valuation tribunal and prove that there is a breach before the landlord can forfeit which I think is a very important reform. The Government indicating, however, that this is not the last we will hear about changes to forfeiture generally. The Government thinks that forfeiture is an archaic and in many respects an unfair procedure.

Other changes, well the new rights in relation to insurance. Some leases require leaseholders to insure with somebody the landlord chooses, which might be too expensive. Reforms to ground rent, that might sound a rather esoteric subject but you may be aware that there are a number of private companies which are loosely called ground rent companies who buy up thousands of freehold reversions of houses and flats. They find often that people have not paid their ground rent, because it is such a small sum of money, for some years and then threaten to forfeit and recover their homes unless they pay large sums of money to the company. It is a practice that one MP referred to as ‘ground rent grazing’ which I think is a memorable phrase. That will become far more difficult next year because in future ground rents will not be payable until the leaseholder has received a notice in a prescribed form. Changes to variation of leases, I have already commented on the forfeiture reforms; if I can just come back to that. One of the things that you will have noticed is the extension of the jurisdiction of the leasehold valuation tribunal. I mention this because there may be a question later about the proposals for a housing court. In a kind of loose sense it is already there as part of the housing court. Once all these changes take place it will have much more jurisdiction than is currently the case and people are concerned to see how the service is going to cope with all this new work.

So my final point, I have already explained why I think the right to manage may be popular. I do not know why the Government is taking so long to implement all of this. It is going out to consultation on things which are not particularly sensitive I would not have thought but there we are. The current predictions are that all of Part 2 of the Leasehold Reform part of the new Act will commence in June 2003. Who knows, people might exercise the RTM and then a few years later, if they come into some money, they might decide to buy the freehold and convert to an RTE. And, ironically I think, that one of the first commonholds we may see in this country in 2004 or 2005 might in fact be a conversion of an existing leasehold rather than a new development. So I will leave it there and pass you back to your Chair. Thank you.

Chair

I thank James for that. I think it was a romp through a difficult area of the law, which I think you will all have found very interesting. We now turn to Martin Partington who is going to comment on the

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previous speakers’ contributions and update us a little bit about what is going on at the Law Commission.

Professor Martin PartingtonLaw Commissioner

Perhaps I can just start by not speaking to the note that I have provided you with but just taking up a point that Jim Driscoll has been making. One of the jobs that the Law Commission has recently been given is a review of the whole leasehold valuation tribunal, lands tribunal area; in other words the property and valuation tribunals. This follows and comes out of the Leggatt Review of Tribunals of which there are likely to be Government announcements in the new year. Those of you who might be interested in this from a practical point of view and who are anxious to receive an early Christmas present could look at the Law Commission web-site just before Christmas. And there will be a preliminary discussion/consultation paper on some of the ideas that we have been developing about re-structuring which goes I think to the point that Jim was just making.

When I was asked to talk, as you have heard we were supposed to come along and deliver the one idea that we would like to see in terms of housing reform and I thought that was going to be a bit tricky for me because, as people know, I have been leading the Law Commission consultation. We have had our two consultation papers. I think a lot of excitement was caused by the first one, I know poor Caroline found getting through the second one a bit hard going. And in a sense I do not blame her because when we were writing the book all this stuff about third party rights and joint tenants and so forth, it was always the stuff that we left until last and we were really tired out by the time we got to it. But I do think that it is actually tricky stuff and stuff needs a comprehensive look at. And so, if nothing else, I think we have made a stab at trying to provide some sort of code to all those practical issues that arise in the messy kinds of lives that people lead without, you know, by checking in with the lawyers first. I mean one has to look at social reality a little bit on the way. The consultation periods are over, as has been mentioned. We have got a detailed analysis completed of the first CP. Analysis of the second CP is underway as we speak and we are know moving towards policy formulation which is the policy that will be agreed by the Commissioners as the basis on which the team instructs Counsel to draft the Bill which will attach to the report. I should say that I was mildly disappointed that in the key dates that Ben Jackson was revealing to you all, he did not mention what to me is the most important which is in the summer of 2003. Our report will come out with a draft Bill attached to it. So, you know, you can add that to your list of things to look forward to next year.

I think it is fair to say in relation to the first CP, the one on status and security that there has been a very high degree of support for what we were trying to do. I think I understood what Caroline was saying, I think it is important that we continue to hang on to the principle of the consumer approach, the need for terms to be fair and that there should be a clear statement of rights and responsibilities on both landlords and tenants. And within that, the central place for the contract. A couple of developments, I think, are perhaps worth mentioning. It is clear to me that people are now, at last, beginning to grasp the significance of the unfair terms in consumer contracts regulations on landlord/tenant relationships. I was present last week at the launch by the RICS of their new unfair terms proofed document, as they see it, and I know that the Association of Residential Landlords has also produced what they regard as a standard set of terms which are UFT compliant. And it maybe that practitioners who are interested in this should get hold of those documents and have a look at them. I think I would be the first to agree with the fact that we have set ourselves a challenge by making the contract the central document or the central place of the reforms. And I think it is going to be a challenge to give sufficient information in comprehensible form covering the issues that we say that we wanted to cover. I note that the Scots have produced a standard contract for their new Scottish secure tenancy or Scottish social tenancy which runs to 78 pages and I am not sure that that is what we ideally want to see at the end of the day.

A number of issues have come out in the course of the consultation which we would were not directly consulting on but have been mentioned in passing. The inefficiency of the Courts and I think that is an issue that operates on both sides. It is partly the pressures that Wendy was talking about earlier; it is partly the way the Courts are managed. It is partly the funding that is available to the Courts. And a number of respondents have floated the question of whether there should be a specialist

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tribunal or specialist housing court. It is certainly the case that we have had a lot of support for ADR although that was not central to the consultation that we were engaged in, in this exercise. And I think more generally it is still the case that there is a fundamental lack of trust, I mean, you might say, with good reason. From the landlord’s side and the tenant’s side still very much speaking in rather traditional terms in a context where I think the political debate, and to some extent the pressure group debate, has slightly changed focus. I think there is much more a sense of trying to get landlords and tenants to work together at the policy and pressure group level. But out there, if you like in the real world, there is still a lack of mutual trust and therefore a lot to play for, I think, in trying to encourage good practice.

Now in terms of detailed reactions, I will just comment on some of the issues, particularly in relation to CP 162. Our chapter on anti-social behaviour did get a lot of flack; there is no doubt about that. Partly for the tone, partly for the detailed comments and I think it is fair to say that the team at the Law Commission now accepts the basic proposition that there is plenty of law relating to anti-social behaviour; the last thing that one needs in a lot more law. There will be some detailed, technical issues particularly about the use of injunctions, which we will be likely to be saying something about. But certainly we are not going to proceed with our proposals for summary eviction which attracted a lot of attention, as it were, from both sides of the landlord/tenant divide. In relation to the way judges go about their work, there was a lot of support for the idea that at least some of the activity of judges might be assisted were there to be a structured discretion. People misunderstood what we were saying; they thought that the discretion was going to be structured in some way by a Code of Practice outside of the Act. That was not our view; we were planning to include the questions that the judge would have to bear in mind when making a possession order within the legislation itself. And this is actually quite a common feature of many jurisdictions and I think is something that we are going to go ahead with. Not least because of the Association of District Judges quite likes the idea; the Lord Chancellor’s Department was not very enthusiastic but a lot of other people were. In terms of sanctions for failure to comply with the written document, we were trying to cut a swathe through some rather complex rules at the moment. And we have come to the view, I think, that criminal sanctions in this context are probably not really relevant and not really very helpful. But what we have been thinking about is that we were talking in terms of rent sanction, the ability to withhold rent for, sorry forgive me if I do not go into the technicalities, but up to two months’ rent and that would be it. And I think we have been persuaded that we need something more for the landlord who wilfully, despite repeated requests, fails to produce the documents. So we are trying to find a way of expanding that financial sanction in contexts where that would be appropriate. We floated the idea of the concept of a retaliatory eviction, in other words a tenant who had complained, for example about lack of repairs, goes along to the landlord and says ‘we thing you should do repairs’. The landlord instantly turns around and issues the notice under the notice only procedure, we are talking about assured shortholds here. And we raised the question of whether, as it were, there should be a period during which the landlord should not be able to seek eviction. I think we have been persuaded that the complexity of achieving that and the problems of proof that would be associated with that do not really make that idea a runner. And in a way it links, not directly, to the other issue which is the question of the six months’ moratorium. I know a lot of respondents have submitted statements to us saying that we really must retain the six months’ moratorium but I have to say that we have received very little hard evidence of the practical use of the six months’ moratorium as a mechanism for tenant protection. And sticking with Caroline’s point about the need for simplicity, it is undoubtedly the case that the abolition of the six months’ moratorium will facilitate the ability to create a simpler and more comprehensive structure. I should, however, say that one of the things that the Commission perfectly agrees with is that there is a challenge to ensure that private landlords, in particular, do actually comply with the terms of their agreements. But our current view is that we should think of alternative strategies for dealing with that. Some of you may have noticed that we have hinted that we may be doing work on unlawful eviction and harassment and we are likely to propose to the ODPM that this should be extended much more broadly into control of, as it were, or the promotion of good landlord/tenant behaviour. And it seems to me that approaches based on partnerships between local authorities and private landlord groupings would be a much more effective way forward and we will certainly be hoping to be able to do some more work on that. In relation to Court proceedings itself, we did get a lot of evidence of inconsistent decision taking and so forth. And we have also raised the question of whether the idea of possession hearings that nobody really takes very seriously should somehow get a better focus. And that you should only have the hearing at the point where you really 27052023-05:29

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mean business and are looking for the warrant for possession. Again, I think we have been persuaded that that would be a major change of litigation culture which would probably be unachievable in one jump. And what we are likely to be proposing there is that there should be some trials in a number of County Courts to see whether making clearer to everybody that a possession hearing does mean business, that would be the way forward. And I think in that context the kind of protocol that Wendy was talking about, I do not know whether it is for the Commission to take that forward, but an ability to get out of the system the cases that never ought to be there, the ones that are driven exclusively by housing benefit failures would be eminently sensible. And a thoroughly desirable procedural change which can, perhaps be pursued through the Housing Committee of the Civil Justice Council. I think that would be the mechanism for taking that forward.

I should perhaps add to this list of things a couple of other points. Again, Wendy took up the question that a number of registered social landlords are now using Ground 8 as a ground for possession. The Commission holds very strongly to the view that that is inappropriate behaviour, if you like, for the registered social landlord: that a levelling of the playing field between local authorities and registered social landlords cannot admit the possibility of the use of Ground 8. Structure discretion would be the way forward but Ground 8 we do not think is appropriate in relation to what we have called the Type 1 tenancy. There was a second point that I was going to make and I think I have forgotten what it was! If it comes back I will make it. There is a final point at the bottom of the slide here, Rent Act tenancies has caused us great heartache, I have to say. And it may be that it is at this point that Caroline and I are going to part company. As a matter of law reform, I think the case for weaving former Rent Act tenants into the new scheme, subject to protections and so forth, is almost unanswerable. But we have had a lot of evidence that this would be very, very harmful to the interests of individual Rent Act tenants, most of whom as you know are elderly and are really very frightened indeed of change. So I think I have a nasty feeling that we may end up fudging that particular issue, just on practical grounds.

In relation to CP 168, as I say, the consultation period only ended on 15 November so we have got a lot of work still to do on the responses. I think many of those who responded favourably to 162 said that their support was conditional on the detail and a lot of the detail is in 168. On the whole the RSL response has been, I would say, less than enthusiastic though many of the other people involved in this area, particularly the Housing Corporation’s Chartered Institute of Housing, have been much more supportive of some of the detailed changes we have been proposing. But I am afraid it is really too early for me to say anything more in detail about that.

Just a final comment, that I think the context is changing. I was, again, slightly surprised that Ben did not mention the work Shelter is doing with its Commission on the private rented sector because I do think that one of the contexts that is changing is this need for greater participation or collaboration between public and private. Local authorities’ strategic housing responsibilities fit in with all this and we need to think much harder about creating incentives for good landlord practice. I have overrun my time. If you have been, thank you very much for listening.

Chair

Well thank you very much Martin. I think you will all agree it was very useful to hear, not least, what some of the reactions to the first consultation paper have been and where the Commission are thinking of going with the responses. What I intend to do now is first of all to take questions that directly relate to what the speakers have been talking about this morning before, if we have time, we can move on, perhaps, to more general issues that people might wish to raise. As I said before, there is a roving mike so if you put your hand up and I identify you, if you could then wait for the mike to turn up before you start asking your question. So any questions on the topics that were raised this morning?

Luigi SterliniPartner, Tyrer Roxburgh & Co Solicitors

We have heard a lot this morning about consistency and simplicity and, of course, ADR, and the word I would like to hear is flexibility and in particular concerning anti-social behaviour cases and the use of

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mediation. I had prepared a very long question and Tracey suggested that I shorten it so I shall. It seems to me, in my practice, that once an anti-social behaviour case is started it is like a runaway train. There is no flexibility about stopping it and I have even had local authority solicitors saying to me ‘if there is a dispute between neighbours we like to let the Courts sort it out’. I wonder what the panel thinks about the possibility of compulsory medication in anti-social behaviour cases at two specific stages in proceedings. The first is before proceedings are issued and secondly once witness statements and evidence has been exchanged.

Chair

Well I do not know which of the panel would first like to respond to that. Wendy, do you want to be first?

Wendy Backhouse

Okay. I agree with you that it is a runaway train and that the Courts are almost as guilty as the landlords in that they have been told to take it seriously and sort of rush through it at a rate of knots. I think mediation can be very, very useful, as I said in my bit, but I do not see how you can compel the complainants to go to mediation. And I think it would be dangerous in those cases where there is a real risk of threats to the complaining tenant. What I think is required is that there is some more creative approach, both from landlords and from the Courts as to dealing with cases. That mediation can be offered if it seems appropriate and there is no risk to the person who is complaining but you could look at other ways. And this comes back to the support issue for the tenant who is allegedly causing the nuisance. There are all sorts of incremental ways you can improve the situation by getting in, if it is a tenant with mental health problems, making sure that the community mental health team have very regular contact with them. And I think it is often the case of breaking down prejudice amongst the complaining tenants to people with those kinds of problems and making them see that actually there is a support network available that is going to deal with the problems that they perceive the tenant is creating. So that what I would like to see is that kind of approach taken at an early stage. I do not see, though, that either the Court or the local authority could compel anyone to go to mediation. I think that would just ruin what mediation is about, it is reaching a consensus.

Chair

Mike, do you have any comments on that one?

Michael Biles

I agree with Wendy that the essence of mediation as we know it, and I think we generally understand it as the parties consent to it and it is not likely to work too efficiently if they do not. I also think that the point about mediation depends upon where on the spectrum of anti-social behaviour the particular issue is because it is quite clear that there is this broad spectrum. And I think there are some instances of anti-social behaviour, and I am thinking of the examples of one extreme end of homophobic behaviour, racist behaviour, which will not lend themselves to mediation. And I think what we sometimes confuse, we did actually with our own conference just recently, nuisance and anti-social behaviour. I mean nuisance is a dimension of it but anti-social behaviour is a much broader spectrum than mere nuisance and I think, as ever, it is horses for courses and mediation is very valuable in the right circumstances but not in certain parts of my spectrum. And I do not think it would work, personally, if it were compulsory.

Chair

Thank you. Does anyone from the floor wish to pick on that particular issue before we move on?

Nik AntoniadesSolicitor, Shelter

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As far as compulsion is concerned, is it not potentially possible to bring forward an element of compulsion where it is appropriate by using the CPR? Because I think judges have case management powers to require people to have regard to the possibility of mediation or alternative dispute resolution when they are considering cases at a fairly early stage and that of itself might prevent the galloping horse from gathering momentum as it were.

Michael Biles

I would agree with that, I think that is actually consonant with something I said in my presentation earlier on and I think that would be something that Lord Woolf would expect as well. But I think it is very much a question then where you trust the discretion of the judge and the importance of the judge being experienced in the area and trained properly in area. I think actually that was one of the three hundred and three recommendations that Lord Woolf made that judges in housing cases should be trained. And I think that is actually very important because it is sensitive matter of nuance and judgement as to when it is appropriate to say ‘well you should go away and consider that’. I may be out of context but if I can just hark back to the conference we have had just recently on anti-social behaviour. There was a quite well known practitioner in the field at the sort of sharp end of these things who felt that, notwithstanding what may have been said at this conference today, that he thought that the measures which would now be in place given the Police Reform Act had got it virtually about right, he felt. And he very much felt that whichever tactic you use must be in response to the nature of the circumstances. Now some of the cases I referred to just now as being at the extreme end, there is a role there for the landlord. Especially responsible landlords, and of course I deal mainly with registered social landlords, to take a responsibility to intervene between parties who are dealing with very unpleasant and nasty, malevolent, malicious kinds of anti-social behaviour which need someone with that kind of weight and resources to take a more holistic approach to it. And I think that most people who have looked into anti-social behaviour, I believe, sign up to the whole concept of the multi-agency approach, the holistic approach. There is not just one solution and I agree that sometimes the legal solution is just too hard hitting and it is not subtle enough. I think it has to be seen as a whole range of activities. But I do believe that it is possible for a judge in certain circumstances to say ‘I think this one would be better dealt with by mediation’. There are people around who will do that.

Chair

Thank you. Is this still on anti-social behaviour? I will take one last point on anti-social behaviour otherwise I think we would fall into the trap of also spending too much time on this issue.

Nik NicholBarrister, 1 Pump Court Chambers

Still dealing with the mediation issue, I mean the abdication of responsibility by some social landlords and housing officers in dealing with anti-social behaviour, letting the Courts decide, that kind of thing and also not intervening early enough in time. The problem is not when you have the really malicious kinds of behaviour, I was involved recently in a case which involved noise travelling, principally, through the walls which was not a problem of the sound insulation. And by the time it had got anywhere near Court the neighbours were so entrenched in their belief that they had to get rid of this nuisance neighbour that mediation just would not have got anywhere, however expert the mediator. And I have been trained as a mediator so I know what sort of things a skilled mediator can do. But it would have been beyond even their skills at that point. I am wondering to what extent it might be useful to direct social landlords to use mediation by having a mediation clause in a tenancy agreement? I started work years ago in Southwark where they had an arbitration clause which, from the tenant’s point of view, often worked very well. I was just wondering whether a mediation clause, as appears in many commercial contracts these days, might not also be useful?

James Driscoll

Well in principle, yes, it is an excellent idea. But it could not apply in absolutely every single case where there is a complaint. And I think one of the difficulties about anti-social behaviour is that one

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needs to draw a distinction between arguments and unpleasantness between neighbours with the risk that where landlords do intervene, that can very quickly escalate to something quite nasty. Now compare that to anti-social behaviour which is really very serious involving violence, drug-dealing and so on. But I am not sure that starting off with mediation would be very effective there from the point of view of protecting all the residents. But I think in principle, yes it is a good idea. But one would have to draft it, presumably, in such a way as to ensure that in cases of really serious violent or similar behaviour that the landlord would not, in fact, have to choose mediation as the first course of action, if such a thing were possible to draft.

Martin Partington

We did get a bit of comment on this in responses to the first of our consultation papers. And there was a lot of support, in principle, accompanied by wariness that if you went too far down this track, at least at this stage, there simply were not enough mediation services around the country for it to become a standard part of the contract. My suspicion is that at least in the short term the sort of thing that you are suggesting might well be a runner as a sort of voluntary add-on to any standard agreement that we come up with in an area where there is a local support mechanism. One of the things I did not mention, which tenants have told us we really omitted at our peril, is in the context of the longer-term tenancies. Should there be some further involvement or retention of the rights to be consulted and the rights to participate in management and we are looking at that again. And this seems to be exactly the sort of issue that a tenant’s group working with a landlord could develop and agree that they are going to make it part of their agreement. So our scheme would certainly countenance that, I think, if it went through.

James Driscoll

Just to pick up on a few things there, you started by saying that RSLs are abdicating and I suspect that that is not untrue. There are many others who are actually engaged with mediation and one of the things that we found is that one of the reasons that we are not actually putting so many cases to mediation ourselves is that landlords are becoming quite effective at it themselves. I am not saying that there is 100% expertise in that way but clearly your experience indicates to the contrary as well. I think also that your question indicates the spectrum that I was talking about. You were talking about noise nuisance in terms of anti-social behaviour and we can see already now from some of the responses and the questions how broad that whole thing is. I would be interested in your draft of that clause. Can you have the microphone and chant us through it? Because I think that would be interesting to see, frankly. To see how that would work. But I think that in terms of trying to influence those abdicating RSLs of which you speak, that is one of the roles that we have, as an Ombudsman’s Service because if we find that the circumstances would have been appropriate for an RSL …

Tape change

… practice and I think that is an important way in which I think my own service could help towards that. I know it is not short-term but at least it is part of a process.

Chair

Thank you. I am going to move on now to other topics. I saw hands up before, if you could put your hands up again.

Tim PowellPartner, Powell Forster Solicitors

I want to pick up on the question of trust between landlords and tenants in the private rented sector. And there were three issues I wanted to pick up. The first relates to the six months’ moratorium for regaining possession in ASTs. In my view it is absolutely crucial that that is maintained, not to protect tenants from landlords but to protect tenants from local authorities who fail to process their housing benefit applications on time. And so long as you have the moratorium, landlords will be dissuaded from seeking repossession in those cases which are very common indeed. And therefore the 27052023-05:29

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moratorium is a measure which builds trust, I think, between the parties. The second point relates to the deposit scheme. In my experience we deal with a lot of private tenancy cases, mostly students. The fact that the landlord holds the deposit inevitably brings tension to a tenancy agreement and at the end of the agreement will either result in tenants withholding the last month’s rent or the landlord withholding the deposit and all kinds of disputes which arise from that. We have many cases where students, private tenants, sue for their deposits and are met with outrageous counter-claims for unjustified disrepair and other issues. And another related problem is where you have joint tenants who have paid a share of the overall deposit and some get it back and some do not. Or some leave early and withhold their rent and some stay on. And so I think that a statutory deposit scheme removing deposits from private landlords is another measure which would build trust between the parties. And finally, on the question of unfair terms, we have some success in challenging landlords home grown tenancy agreements, really where landlords try and stitch up the private tenants in all kinds of ways. But by using the new unfair terms regulations we have been able to challenge some of the clauses in agreements successfully. But it will build a trust between the parties if we did have standard statutory tenancy agreements and regulations that private tenants should use in all cases and it is a measure that I would strongly support.

Caroline Hunter

Well, I think there are a lot of valid points there. I do not particularly want to address on the six months’ moratorium but I do think there are real problems with working with private sector landlords that local authorities are finding which is simply just knowing who they are. And, particularly where many of them have one or two properties and really do not want to engage with statutory services and so on. And there are ways forward for building trust that can encompass that even before we get to a statutory scheme, which certainly on tenancy deposits would be welcome. And that is through the sort of accreditation schemes that are going on that can use standard tenancy terms, that can have requirements for the landlords to join the accreditation scheme as to holding deposits separately and that sort of thing. So I think we should try and encourage local authorities to get involved in that type of work with their private sector to help encourage that sort of trust relationship to be developed.

Chair

Martin, do you want to say anything about the comment about the six months’ moratorium?

Martin Partington

I will say, I mean since I said what I was going to say about the six months’ moratorium and to some extent I fear I am just going to have to agree to differ with you on that. I mean we have taken on board precisely the point that you have made. I suppose one question that I would put back to you is how many private sector contracts are for less than six months, as a fixed term, in the first instance? And given that it only bites for the first round and that many landlords after the first six months then give another six months and they do not just let it roll on. You know, that is part of our argument which suggests that it may not be quite as significant as legally it appears it ought to be. I have now remembered, however, and your question has reminded me of the point that I forgot that I was going to make that was not on the slide. A number of people did submit to us that it was absolutely outrageous that we should be trying to corral the hobby landlord into the scheme that we are proposing. And I have to say that the team has taken a rather firm view that that is as non-negotiable as Ground 8 for the RSL sector. I mean, in my view this scheme will not work unless everybody is required to sign up both to the requirement to providing a written contract. And, we are not going quite as far as saying there will be a single contract, but our contracts will be unfair contract term compliant and I think there is a very fair chance that anything that is not ours will not be. And we certainly want to give incentives to private landlords to come into the scheme. I very much hope that, as it were, in the next round of work, if we get that we can build on the sort of point that Caroline has been making to really work out practical ways of giving private landlords incentives. It is going to be easier said that done, I do not deny that. But that is the way that I think is the sensible way forward.

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Michael Biles

Nobody seemed to have heard about David Niven and his fridge but maybe you have seen in Tom & Jerry there is the good cat and the bad cat urging Tom to do things or not do things. There is a good Ombudsman and a bad Ombudsman on my shoulders and one of them is saying be bland and uncontroversial and the other one is saying tell them what you really think! And I am going to tell you what I really think. I am grateful to you for the point you made about the tenancy deposit scheme. I, for many years, had to advise students who were being threatened with losing their deposits and I know that not all students are saints by any means but I think that it was clear that there was a scam going on there that was totally unacceptable. I was therefore delighted when I took up my post to find that we did have the pilot scheme for the tenancy deposit scheme because one of the things I want us to do is to reach the people who really need our help. At the moment the pilot has, if I can put it this way, reached the posh end of the market and that is only acceptable in the sense that we have been able to test the mechanisms and test the processes. I think that in order for it to have real value it has got to reach the people who are really suffering. The kinds of people you have described and I have met. I do not think that landlords should be holding deposits at all unless that is in some kind of insurance option and we have two schemes, as you may know, with our tenancy deposit scheme. One is the insurance option and one is the custodial option. And now, if there is a dispute at the end of the tenancy as to who gets what, it goes to the Ombudsman. And it seems to me that that is a very straightforward scheme and a just and fair scheme. And people should not be in those circumstances forced to have to go off to Court and sue, as you said. And so I am delighted that you raised it. I will remind you the consultation document was published last week, I urge you if you are interested in this topic, to get your replies in early and I look forward to the thing I mentioned earlier at the end of my presentation.

Chair

Thank you. Next question?

James Bowen

I have two questions, the first is my HLPA Executive planted question and the second is my own! The first question is, is it time for a specialist housing court and, if so, to what extent should the Ombudsman and ADR be factored into that? The second question, which is mine, is the bulk of us, I anticipate, entered into housing law because we felt there was an imbalance in power and access to rights between landlords and tenants. There have been, obviously, various changes and there are concerns with this Government but it is hard not to see other than all the constraints are put in front of tenants and applicants. They have to go to ADR, they have to comply with pre-action protocols, they have difficulty enough gaining access to lawyers who have franchise or skills whereas it appears in some ways that the wheels of the registered social landlord and other landlords are being oiled. I wonder what view the panel has as to the second question as well.

Chair

Okay, Wendy do you want to respond to either of those?

Wendy Backhouse

As to the housing court, I think that most of us in this room for a long time have said there should be, if not a specialist housing court, then specialist judges. Lord Woolf said judges ought to be trained. Well they are trained but, you know, you get forty-five minutes on your induction course in housing law. And then not a lot, frankly, thereafter. My worry about a court is the resources issue and the question of access. We all know that County Courts are under threat and that there are closures. We do not see it London so much, although I think there is one or two marked for closure. But out in 27052023-05:29

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rural parts we know that you have to travel miles and miles to get to your County Court. Whilst I would like to see some sort of new body that did encompass the Ombudsman in the expanded role that Mike was suggesting and offered ADR of various kinds and trained judges, I cannot see the LCD ever, ever having the resources to set up such a thing. And I think we are probably going to have to settle for ticketed judges in the same way that judges are ticketed to do Children Act work. I do not see why judges should not be ticketed to do housing work and it would not be too difficult to ensure that those judges heard possession cases, homelessness appeals, etc, etc.

Michael Biles

I think, on the first point, I agree entirely with that. The whole idea about housing courts has been around for many years and there are difficulties but I do agree that there should at least be a specialist cadre of judges in the way that Wendy has just described. The rest of your planted question goes on to say ‘would such a court embrace as part of its jurisdiction the Housing Ombudsman and ADR for housing?’ And I think my answer to that would have to be no because they are two different things seeking to achieve two different objectives. And I think they need to be separate but complementary. And as I mentioned in my presentation, the whole point of an Ombudsman is to try and contribute to good practice, to contribute to the continuum of the relationship between the two parties. There is no sort of concept of win-win or whatever, it is a matter of trying to bring a conciliation and a solution to an on-going relationship and I think that that can work as a complementary function with Courts. And again, as I said in my presentation, there are clearly things that Courts ought to be doing and I agree with Wendy that possession action is clearly one of those. But there are other areas where I think ADR is better suited and separate.

James Driscoll

Just a quick comment really, about the Leasehold Valuation Tribunal. I mean, if anything, housing law has been split up more and more between Courts and tribunals and overnight, with relatively little debate we have seen a whole range of things being transferred away from the County Court to the LVT. And I think one of the challenges, if I can put it that way, for the LVT service is to see how they will cope. The do not have jurisdiction to make orders for costs, for example. They find it very difficult to enforce interim orders, very difficult to persuade parties to show up with documents and so on. It leaves many people to question, actually, whether it was a wise thing to shift all this jurisdiction into that tribunal. So things, in a sense, are getting worse for the housing court idea rather than better, I think.

Caroline Hunter

Can I say something which perhaps is trying to bring James’ two questions together which comes out of the work that we have been doing? We talked to a number of defendants and what seems very apparent is that when they do go for their possession actions in the County Court, the County Courts are very much geared up to the repeat players. That it is a completely frightening and off-putting place just to walk in and try and find your way to the District Judge’s Chambers where your case is being heard. Wen you might have seven District Judges sitting and you have got to go and find your name on the list, then find the appropriate place to go in that sort of place that Wendy described, a bedlam. It is a completely frightening experience and is part of that imbalance between landlords and tenants. And one of the things that needs to be addressed is having a much more customer friendly County Court, if they are going to carry on doing this sort of action. Which sees the defendant tenant as, if you like, a consumer who they are there to serve rather than simply being the fodder to get through, to keep the judges happy and run their lists in a way that meets the judges’ needs specifically.

Chair

It is getting near to 1pm, I am just going to throw it open generally, are there any other questions that someone is burning to ask?

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Solicitor, Hammersmith and Fulham Community Law Centre

We are acting for very marginalised clients with extremely tenuous rights to housing of any sort. And I suppose one of the points that comes to us in the Law Centre is that housing is simply a venue or a battleground where lots of family and social problems are fought out. And a lot of the issues that we are talking about today are procedural matters in how to regulate, you know, what you might call second order debates about those peoples’ rights to housing or how they can access them. And I wonder whether we need to go back and if there is any place in any of the roles that the speakers are playing to look at the basic right to a home and an adequate home for each person or for each family? The right to a home of an adequate standard and so we need to be thinking about space standard, sound insulation standard, efficient and affordable heating, good outside space for children of different ages. And in talking about the hobby landlord for instance, can we look at the duties of anyone who wants to let a home for profit, providing a home of a reasonable standard? And if they are going to let it to a family then certain things have to be attended to. Because I think what is clear from what has come out before is that a lot of what stigmatises anti-social behaviour is boredom. You know, hidden homeless, adults who cannot afford a home of their own having to live in houses that are too small. So in future Law Commission reports, for example, can we look at standards of housing and rights to housing in a very simple way, which we have not been discussing here yet?

Chair

Thank you. I am going to ask Martin about that first. There has, of course, been the 1996 Law Commission consultation paper which did look at standards, Martin. I do not know whether that is going to be taken forward?

Martin Partington

Well, we keep on being told that it is going to be taken forward as the ODPM comes to this new sliding scale, sorry I have forgotten the technical terms but you know what I mean! The ‘thing’ that they are talking about coming into the draft Bill so we are rather hoping that that will see the light day. And in a sense that was a precursor, I suppose, of what we have been trying to do. If you buy a car and it does not work on the whole there is a question about whether it was fit for purpose and whether you should have some ability to get your money back from the garage that supplied it. Of course that might be easier said than done. But if you believe that the basic principle of English law should be that everyone has a right to let a tumbledown house, then you are not in the same ballpark. And I think both the Law Commission in that 1996 report, and by implication what we have been trying to do in this, is to say if you supply housing it has got to be at least basically fit for the purpose for which it has been provided. We have kind of left that on one side because we did the work in 1996 but I see it as part of what we are trying to achieve and very much hope that they will be brought together. But you know, it may be easier said than done.

Chair

I am going to give each member of the panel to answer this because it will be the final point that they will be able to make.

Michael Biles

One of the things that I might have said if I had been given a longer Christmas list would have been, I think, that there should be a standard which simply says, as with the sales of goods, that peoples’ dwelling houses ought to be fit for the purpose and there ought to be a proper standard by which you assess them. It is quite clear to me that a housing Ombudsman cannot solve the problems of the world. Part of my vision that I mentioned earlier on is that there should be an Ombudsman for housing. I do believe that if that were to occur we could actually contribute to a process whereby there would be a much greater interchange of good practice between different areas of housing provider. At the moment we have a bewildering array housing providers, social landlords, private sector, public sector and some sort of commonality of good practice, I believe, ought to be integrated 27052023-05:29

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into that provision. And who knows, maybe the beginnings of it might through an audit commission kind of inspection process for all types of housing with one Ombudsman dealing with disputes of that kind. I do not know but I think it is certainly something to watch for, certainly something that I would like to see in terms of a constant, across standard in terms of both management as well as repair.

James Driscoll

Well, I agree with everything that has been said so far but I have a concern about how this would work in the private rented sector. The private rented sector, as we all know, has effectively become deregulated in recent years with scarcely a whimper, ironically. So that if we were to leave enforcement just to tenants then I do not think it is going to work very effectively. So that is why I am quite interested in ideas such as local authority accreditation schemes and other methods of encouraging landlords to offer housing at a decent standard.

Caroline Hunter

I think we are in danger of moving towards to many standards at the moment. We have got our old unfitness standard; we have got this new health and hazard rating standard, which I must say I find incredibly complex. And then on the other side we now have the decent homes standard which social landlords are having to move towards but with no legal backing to it. And I find it quite difficult to see how these are all supposed to fit together. And perhaps we should be looking at one standard being imposed and having some sort of legal backing and regulation behind it. And certainly, as far as the decent homes standard is concerned, it seems to me to be rather aspirational at the moment rather than having any sort of legal enforceability. It certainly does not have any legal enforceability. And that may be a way forward of trying to find a standard that would be appropriate.

Wendy Backhouse

I just wanted to pick up on the right to a home and this sort of fits slightly with what James was saying. There is an imbalance still between landlords and tenants and, actually, I think that the framework that the Law Commission is putting forward is a step away from that old paternalistic approach towards the social housing where you are jolly lucky to get it. And landlords could do more or less what they liked. What I would like to see is the higher Courts taking a stronger view of human rights and Article 8. I think the results in the cases so far have been extremely disappointing, by and large. And we are even having the Qazi decision appealed to the House of Lords, you know it is not even certain that the place you live in is your home. And it seems to me that the Courts could give a very heavy steer towards paying real attention to respect for a home.

Chair

Well I am glad that we did finish this morning by mentioning Human Rights because it was obviously the one thing that we had not managed to speak about. But I am sure that this afternoon’s sessions will also deal with that. I think that just before you go for your lunch we should thank our speakers again, we have been extremely privileged to have such a good array of speakers from such diverse backgrounds and I think you will agree that it has been interesting debate we have had this morning. So thank you to you all.

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