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As the government consults on the idea of a new Housing Court to make it easier to resolve housing disputes, Daniel Skinner looks at what the benefits and challenges could be
There has been talk of a specialist Housing Court for many months, if not years. Now, the government has released its consultation document, Considering the Case for a Housing Court – A Call For Evidence.
It follows on from other changes, such as banning orders and consultation on leasehold reform and the Social Housing Green Paper.
The consultation is in four parts and the last section will attract the most attention. It relates to the case for structural changes to the courts and tribunal, and considers a possible new Housing Court.
The consultation sets outs out four options:
One of the biggest differences between the two current dispute routes – the county court and tribunal – is the issue of costs.
Costs can be awarded in the county court but are generally not recoverable in tribunal. Tribunals were designed to be used by litigants in person and free of lawyers. However, under the terms of leases, freeholders may be able to recover costs through service charges so are often happy to instruct lawyers.
Legal aid is not available at tribunal. If the new Housing Court does not contain a provision for legal aid to be available, many vulnerable tenants will be left unrepresented. But if legal aid is made available, the issue of recovering costs will potentially be controversial.
If, say, a tenant won a disrepair claim and costs were not recoverable, either the damages awarded would be eaten into or the taxpayer would be paying for the tenant’s lawyer.
Mind you, a greater focus on proportionality of costs would be welcome.
“If the new Housing Court does not contain a provision for legal aid to be available, many vulnerable tenants will be left unrepresented”
Similarly, if costs are not awarded, a successful landlord will be left out of pocket. It could be argued that, in essence, this is already the case, as awards of costs are rare or unenforceable.
If a social landlord cannot recover its costs then it is its other tenants who end up paying.
One advantage of a Housing Court could be the use of specialist judges with expert knowledge of the law relating to housing.
This may speed up disputes and help with decision-making. Currently, county court judges have a difficult job and cover a very wide area of law, often having practised in different fields such as matrimonial law before being appointed.
“One advantage of a Housing Court could be the use of specialist judges”
Making structural changes may be worth looking at, but the county court is clearly struggling at the moment. Adding extra cases would seem unwise. However, moving large numbers of cases in the other direction could flood the First-Tier Tribunal.
Changes to enforcement in the county court would seem sensible, but if that involved greater use of private agencies, there may be concerns about rogue elements becoming involved.
Making no changes but improving guidance is the last option. While improved guidance can never be criticised it would seem unlikely that this option will result in any major practical improvements.
Readers are encouraged to respond to the consultation, which can be accessed here.
Daniel Skinner, partner, Capsticks Solicitors