Professor Lisa Whitehouse sets out what we can learn from her recent work assessing the court system’s response to the COVID-19 pandemic in housing possession cases in England and Wales.
As possession lists begin to return to ‘normal’, now seems a good time to reflect on the extraordinary changes that took place between March 2020 and November 2021. Given the prediction that the impact of the COVID-19 pandemic will reverberate around the system for many years to come, it seems unlikely (and I doubt anyone familiar with the process would expect) that we will simply be able to pick ourselves up, dust ourselves down and return to the old ways of doing things. What lessons, if any, then can we learn from the court system’s response to the pandemic in housing possession cases?
In offering an answer to that question, this article draws on a nine-month study, generously funded by the Economic and Social Research Council
, into the practical operation of the Overall Arrangements for Possession Proceedings (OA). The findings and recommendations arising out of that study (Assessing the court system’s response to the COVID-19 pandemic in housing possession cases in England and Wales
, January 2022) combine existing research with original first-hand accounts (obtained using online surveys) from those most closely associated with the possession process, namely, occupiers, debt advisers, landlords (private and social), claimant representatives and Housing Possession Court Duty Scheme (HPCDS) providers (176 responses were received).
The findings suggest that, while the reforms introduced between 17 September 2020 and 1 November 2021 appeared to be well-intentioned, and the objectives underlying them laudable, they were scuppered by one fundamental oversight, namely, that those who were meant to be assisted by them would not take advantage of them.
Were the Overall Arrangements effective?
Assessing the ‘effectiveness’ of any reform is always fraught with difficulty, not least in arriving at an agreed definition of what constitutes ‘effective’. That task was assisted here, however, by the inclusion of very clear objectives by the architects of the court system’s response, the Master of the Rolls Working Group on Possession Proceedings. Those objectives were:
(a)reducing volume in the system by enabling earlier advice and increasing settlement;
(b)taking account, within limits that the law has imposed, of the effect of the pandemic on all parties; and
(c)maintaining confidence in the fairness of outcomes.
An analysis of the data obtained during the study suggests that none of these objectives were met to a satisfactory extent.
Did the Overall Arrangements reduce volume in the system?
The review date (R date) seemed like a win-win. The provision of early (ie, earlier than under the pre-COVID-19 system) advice to the parties in the hope of arriving at pre-court settlement had the potential to resolve cases before a substantive hearing was necessary (particularly those cases that were likely to be adjourned in any event). The evidence, however, suggests that the R date, rather than reducing the number of cases, served mainly to delay them progressing to a full hearing.
A significant number of duty advisers (28 out of 33) and legal practitioners (nine out of 10) who took part in the study said that the majority of cases they dealt with proceeded to a full hearing. It is perhaps not surprising, therefore, that landlords and claimant representatives had little good to say about the R date. One private landlord said: ‘It just wasted more time and extended the time for tenants to stay and not pay anything.’ A legal practitioner commented: ‘It is not an improvement. It has no function other than to increase delay and costs’ (para 4.62, page 77).
These findings are supported by research undertaken by the Bureau of Investigative Journalism (BIJ), which found that ‘lawyers and judges told the Bureau that review hearings … often just delayed proceedings, causing debts to mount up further’.1Maeve McClenaghan, ‘Open justice? The closed doors of possession courts’, BIU, 9 November 2021.
A major criticism levelled at the pre-COVID-19 housing possession process by practitioners and researchers was the system of ‘block listing’, which allocated only a few minutes to each possession hearing. Under the OA, substantive hearings (S hearings) were instead allocated 15 minutes. The intention, perhaps, was that this would allow cases that would previously have been adjourned to be resolved, thereby reducing the number of cases churning through the system. This raised concerns for some duty advisers, who acknowledged the adverse impact that this could have on some of their clients. One explained: ‘On occasion additional time allows issues to be explored. However, this can be to the disadvantage of the defendant as cases which previously would be adjourned are being determined at the first hearing as the judge has more time.’ Others, however, felt that the extra time allocated to S hearings was being used effectively in most cases. Another duty adviser said: ‘It is less rushed which means you can put your arguments forward in a more structured and thoughtful way’ (para 4.103, page 92).
As for reducing volume in the system, however, the S hearing appeared to offer little assistance. As one social landlord noted, the extra time led to fewer cases being heard and hence a backlog was being created: ‘As a result of more time being set aside for substantive hearings there are fewer hearings taking place resulting in long waits for court dates’ (para 4.105, page 93).
Did the Overall Arrangements prove effective in taking account of the effect of the pandemic on all parties?
As part of the OA, claimants were required to provide ‘enhanced information’, setting out what knowledge they had as to the effect of the pandemic on the defendants. Duty advisers responding to the survey praised the ‘enhanced information’ or ‘R bundle’. As one duty adviser noted: ‘The provision of the court bundle is a massive improvement on the pre-COVID situation and very helpful to duty advisers’ (para 4.118, page 98).
However, it seems that the R bundle did not prove effective in ensuring that the courts were able to take into account the effect of the pandemic on the parties. The reason for this is that while the OA changed some of the procedure for handling possession claims, they did not alter the substantive law. The impact of the pandemic on the parties, therefore, could have no influence over the judge’s decision in cases involving mandatory grounds for possession. As such, at most, the R bundle served as a useful addition to the duty adviser’s toolkit.
Did the Overall Arrangements maintain confidence in the fairness of outcomes?
Just as ‘effectiveness’ can be a difficult concept to evaluate, so too is ‘fairness’. The task was made easier here, however, by the fact that the OA sought to maintain confidence in the fairness of outcomes. By using this measure, it seems clear that, yet again, the OA failed to achieve this objective. The inability of landlords to recover rent arrears or their properties was seen as an example of the perceived preference shown towards tenants within the private rented sector. A private landlord remarked: ‘Clearly the law and the system [are] heavily skewed in favour of the tenant’ (para 4.34, page 68). Rather than maintaining confidence in the fairness of outcomes, therefore, according to one duty adviser, the OA led to ‘an escalation of rent arrears and claimants who are evermore resentful’. One private landlord commented that they had ‘lost confidence in the British justice system’ (para 4.126, page 101).
Why did the Overall Arrangements fail to meet these objectives?
Amidst the many and varied responses received during this study, there was one recurring theme: tenant engagement, or rather, the lack of it. This will not come as a surprise to anyone associated with the possession process. While large-scale data on tenant engagement has never been available, it has long been known that a large proportion of tenants do not engage in the arrears and possession process.2See, for example, Susan Bright and Lisa Whitehouse, Information, advice & representation in housing possession cases, University of Oxford/University of Hull, 25 April 2014.
That was certainly reflected in the responses to the surveys for this study.
As regards the R date, for example, a majority of duty advisers (23 out of 35) and legal practitioners (seven out of 10) said that the occupier had engaged in 0–10 per cent of the R dates they had been involved with. One legal practitioner said they had ‘not yet had a claim where there has been engagement by a defendant at the review stage’. A duty adviser remarked: ‘[I]t is rare to be contacted by more than two or three defendants where there are 10 on the list for any given day’ (para 4.46, page 72).
As regards S hearings, the BIJ, having observed 115 mortgage possession hearings, found that in 78 per cent of those hearings the occupier did not attend and in 81 per cent the occupier had no legal representation.3Maeve McClenaghan and Charles Boutaud, ‘Big banks resume push for repossessions in wake of pandemic’, BIJ, 3 November 2021.
Of the 555 possession hearings they observed involving rented accommodation, just under 60 per cent involved no attendance by the tenant or their representative.4Maeve McClenaghan, ‘Evicted in less than 10 minutes: courts fail tenants broken by pandemic’, BIJ, 23 September 2021.
Respondents to this study suggested that the lack of attendance by the defendant made the extra time afforded to S hearings unnecessary. ‘Few cases are truly defended in any serious way,’ said a legal practitioner, ‘so the additional time is often wasted’ (para 4.104, page 92).
The reasons for tenants’ non-engagement in a process that could result in them losing their homes are difficult to assess. This is particularly the case given that occupiers’ voices are rarely heard in research studies. Respondents to this study, however, offered some possible reasons: ‘Burying head in sand, fear of being judged, feeling of hopelessness and “what can I do about it” attitude, refusal to believe that they will be evicted,’ said one social landlord (para 4.51, page 74).
For some private landlords, however, it seemed clear that many tenants were simply ‘playing the system’. One said: ‘They do not engage as they know the “system” and how long it takes to remove them’ (para 4.51, page 74).
More structural issues may also be in play here, though, including non-user-friendly court forms, lack of knowledge of the court process and advice deserts
Looking to the future
Whatever the reason for the non-engagement of tenants, it appears to have played a pivotal role in undermining the success of the OA. It is crucial, therefore, that innovative research is conducted to learn more about occupier engagement. Only then will it be possible to ensure that the voice of occupiers is heard, and only then will it be possible to propose reforms that might encourage meaningful engagement.
As regards future research, I have been fortunate to secure £90,000 from the abrdn Financial Fairness Trust
to undertake a project designed to gather data from occupiers about their experiences of being in arrears. The project will begin in July 2022 and will run for 18 months. As with this study, its success will be dependent on working with trusted intermediaries, such as Law Centres and debt advisers, in order to access this hard-to-reach demographic.
The findings of this (albeit rapid) assessment of the OA suggest that they served mainly to delay rather than resolve cases. This is of concern given the predicted ‘tsunami’ of possession claims waiting in the wings. It does not, however, mean that a radically different response is needed. Initiatives such as the R date, the R bundle, and extra time for S hearings have the potential to address the challenges facing the civil justice system in the next few years. These, or any other reforms, however, will only succeed if tenant engagement is understood, addressed and resolved.