A new comprehensive housing disputes service (HDS) to break with the past and streamline access to dispute resolution, with a heavy reliance on ADR, has been proposed by campaign group JUSTICE.
However, the flagship proposal was attacked by tenant lawyers for being unduly critical of the present way housing disputes were litigated and not sufficiently recognising the imbalance of power between owners and vulnerable people.
The JUSTICE report said large parts of the housing advice sector had collapsed due to legal aid cuts, leading to advice deserts.
The working party, headed by Andrew Arden QC, consisted of a range of judges, academics, and legal practitioners.
Describing the HDS, the report said it would “fuse elements of problem-solving, investigative, holistic and mediative models utilised elsewhere in the justice system” in order to remedy “underlying issues that give rise to housing claims and sustaining tenant-landlord relationships beyond the life of the dispute”.
Should the HDS take off beyond a pilot phase, it would be a national service funded by subscription from housing providers, the working party said.
In its final form, it envisaged the HDS taking on housing disputes which currently reside in the First-tier Tribunal (Property Chamber), county court, and magistrates’ court; housing provider maladministration claims from redress providers; the rent officer service; the dispute resolution function for pre-existing tenancy deposit schemes; and reviewing homelessness decisions under section 202 of the Housing Act 1996.
It would combine “an advisory approach with active assistance, enforcement of regulatory and contractual compliance, and dispute resolution”.
This would happen in four stages: an “holistic, investigative, problem solving” stage, followed by an interim assessment, then facilitated negotiation/ADR, and finally, if necessary, adjudication.
Whether or not the HDS was adopted, access to justice in housing disputes should be simplified, the report said. People facing housing disputes and homelessness should have a single point of entry for disputes.
Proposals included “pop-up courts and tribunals” to compensate for court closures and assisted online services.
Once proceedings commence, the working party said ADR should be embedded pre-action and more strongly encouraged throughout the court and tribunal process, case workers should be used to help triage disputes to the correct resolution method, and cross-ticketed, specialist housing judges should be appointed to sit for both court and tribunal jurisdictions.
The committee acknowledged the HDS proposal was “bold, ambitious and will require significant time and investment”. It should be piloted carefully before implementation.
The report was frank that its motivation for the HDS was to replace an adversarial approach with an “inquisitorial approach” which took a “mediative approach to disputes to encourage and facilitate a new culture between tenants and landlords” that would be long-lasting.
But the approach was condemned by some housing lawyers. A dissenting annex was attached from the Housing Law Practitioners Association, which argued the HDS was a “fundamentally misconceived proposition which is wrong in principle and unworkable in practice”.
By suggesting disputes were currently litigated in a “notably adversarial” way, JUSTICE did not understand the realities affecting vulnerable people with housing problems and failed to “grapple with the inherent imbalance of power in the landlord/tenant and local authority/homeless person relationship”.
As well as breaching article 6 of the European Convention on Human Rights (right to a fair trial), the association said, the HDS represented “not a levelling of the playing field but a race to the bottom”.
Mr Arden commented: “I believe passionately that only something like the HDS can actually alleviate the strain of disputes with their landlords for tenants, promise something more hopeful to the homeless and advance housing conditions through a wider consensus.”
Andrea Coomber, director of JUSTICE, said: “The proposal for the HDS comes within the context of the government pitching a ‘new deal’ for tenant-landlord relations.
“Within that context, we think a new approach to disputes, based on conciliatory methods, transparency and exploration of underlying problems should be explored.”