back to housing law back to home
Hearing Housing Cases – Who Should be Listening?
 JHL 83
Who should adjudicate on disputes between landlords and tenants? It may have been naďve to hope that Sir Andrew Leggatt’s review of tribunals, Tribunals for Users – One system, One Service (Available at www.tribunals-review.org.uk.) would make a significant contribution to this debate. The issues are far wider than the organisation and composition of the tribunals that are involved in deciding some types of housing cases. Tribunals for Users devotes a few pages to the role of the Lands Tribunal, but does not address housing issues in any detail. At para 3.30 Sir Andrew says in relation to land, property and housing:
“There are confusing overlaps of jurisdiction between courts and tribunals, as well as between tribunals. The tribunal model is a useful one, because it brings experts within the decision-making process. . . . But the nature and conduct of these disputes are even closer to those handled by courts than those before [Employment Tribunals], and indeed in some jurisdictions can be heard in whole or in part by both courts and tribunals. We cannot simply suggest they should constitute a specialised section of the county court, sitting with valuers or surveyors, because courts and tribunals have different remedies, and the underlying law would need close examination. Any such consideration goes well beyond our terms of reference. It will also require specialist expertise.”
He calls upon the Law Commission to be enlisted with the Lands Tribunal to assist the Government in working out a comprehensive solution, with a view to removing the overlaps and scope for forum-shopping to be found in the current arrangements.
There is no doubt that the current system is unsatisfactory. Housing cases are decided by several different courts and tribunals – county courts, the Administrative Court, magistrates courts, Crown Courts, Rent Assessment Committees (RACs) (both under their own name and sitting as Leasehold Valuation Tribunals (LVTs)), Rent Officers and the Lands Tribunal.
This is a source of unnecessary complexity and confusion. It causes particular problems where there are overlapping jurisdictions. For example if premises suffer from disrepair, tenants may issue proceedings in a Magistrates Court for an order that a landlord remedy a statutory nuisance under Environmental Protection Act 1990 and then in a county court for damages for breach of repairing obligations arising from the same disrepair. Similarly disputes involving service charges payable by long lessees may be heard in different forums. The intention behind the repeal of Landlord and Tenant Act 1985 s19(4), (Housing Act 1996, Sched 19, Part III – but note that County Courts Act 1984 s38(1)) remains in force, and probably means that the county court does in fact still have jurisdiction to grant declarations in stand alone claims. For The New Powers of Leasehold Valuation Tribunals see  JHL 41, 58, 79, 95.] was that county courts should no longer have jurisdiction to hear claims where the only relief sought is a declaration as to the reasonableness of service charges and that they should only be heard by Leasehold Valuations Tribunals. However county courts can determine the reasonableness of service charges where the issue arises in other proceedings (e.g. a claim by a lessor for forfeiture of a lease on the ground of arrears of charges) or may transfer that narrow issue to a LVT (Landlord and Tenant Act 1985 s31C). On the other hand LVTs have no jurisdiction to determine issues arising from the construction of leases, such as whether a term of a lease allows for recovery of service charges for a particular form of expenditure, or whether the sum has been calculated correctly in accordance with any formula in the lease. (See e.g. Aylesbond Estates Ltd v Macmillan and Garg (2000) 32 HLR 1, CA, Wandsworth LBC v Manuel (2001) May 19, QBD and Gilje v Charlegrove Securities Ltd  44 EG 148,  L&TR 197, Central London County Court and Lands Tribunal.) There is also a divergence of routes of appeal. An appeal from an LVT (normally comprising a lawyer chairman or woman, a valuer and a lay person) lies to the Lands Tribunal (sometimes comprising a single surveyor who is not a lawyer) and then to the High Court. An appeal from the county court proceeds (normally) to the High Court.
The possibility of a single point of entry for the determination of all housing disputes is attractive. It would be easier for users, and could result in rationalisation of Court Service/tribunal estate and a greater consistency of decisions. It would also avoid the unnecessary expense of different aspects of the same case being heard in different forums. However considerable flexibility would be required. Legally, a tenancy of a bed-sit in Bermondsey and a 99-year lease of a pent-house in Belgravia purchased for a substantial premium may be members of the same genus, but in practice the characteristics of the different species of housing tenure are very different. Housing cases may involve simple issues with litigants in person who have no relevant documents or complex disputes where silks are instructed and there are several ring binders full of documents. On the other hand they may involve complex issues where the parties have been unable to find legal representation or have decided to represent themselves and have come to the court or tribunal with carrier bags full of unsorted documents. The need is for a procedure that can be sufficiently informal to ensure that litigants in person are not prevented from presenting their cases, but sufficiently structured to ensure that evidence is properly tested within the legal framework. If there is to be a single point of entry, it must be sufficiently adaptable to hear all cases fairly, efficiently, economically and without delay.
A single forum for the resolution of housing disputes would also have the advantage of making it easier to build some form of mediation into the system. Unless a landlord succeeds in obtaining possession, landlords and tenants who are in dispute must continue their relationship after any court or tribunal hearing. As a result of their frequently conflicting interests there are many cases, especially but not necessarily limited to the private sector, where landlords and tenants have little understanding of the other party’s position. An adversarial system, which often emphasises, or even exaggerates, the differences between parties and polarises their positions, does not help the continuing relationship. At present, apart from involving the Independent Housing Ombudsman, there is little prospect once proceedings have begun of encouraging mediation. Notwithstanding the doubts of many housing lawyers, there are potentially huge benefits from having a system which is able to encourage mediation between the parties.
For many years, there have been calls for a unified
Housing Court, or as a second choice, a “fully-fledged Housing Tribunal” which would hear all cases involving housing issues. (See e.g. A Fair Hearing – Possession Hearings in the County Court, SHAC, 1977; Housing Courts – a proposal by the Royal Institution of Chartered Surveyors, 1983; Housing Courts- A consultation paper, Greater London Council, 1983; Not on their own, Organisation of Private Tenants, 1984; What Price the Housing Court? Edward F Cousins, New Law Journal, 16 March 1984, p268; cf The Courts & the Housing Crisis, Law Centres Federation, 1985 and Housing Courts: A Better Solution, Russell Campbell, New Law Journal, 26 April 1985, p421. This issue has been discussed more recently in this journal at  JHL 17,  JHL 31 and  JHL 1.) Most Commonwealth jurisdictions have a specialist forum to hear landlord and tenant disputes, often with the availability of mediation and conciliation arrangements. However in this country, whatever the merits of a housing court may or may not be, there is no imminent prospect of one being created. Lord Woolf rejected the suggestion “because it would not encourage the flexible use of judicial and other resources within the civil justice system as a whole”. (Access to Justice Final Report, p198.) Current government thinking is against the splintering of the court system by the creation of new specialist courts.
At present, most housing cases are heard in county courts. In 2000, 239,057 claims for the recovery of land (excluding claims under CCR Order 24) were issued in English and Welsh county courts. (Judicial Statistics Annual Report, 2000, LCD, p40.) Housing Act 1996 s204 has converted most homelessness cases from applications for judicial review in the Administrative Court into statutory appeals in the county court. The current Homelessness Bill will extend the county court jurisdiction. It includes a new s204A, which will give applicants the right to appeal to the county court against a decision by a housing authority not to exercise its power under section 204(4) to accommodate pending the outcome of the appeal. There are also a significant number of small claims track cases, which involve housing issues (minor disrepair, claims for the return of tenants’ deposits, service charge disputes etc).
There are mixed views as to the quality of judicial decision making in housing cases in both county courts and tribunals. Litigants generally praise the informality of small claims track hearings. It is a procedure that can be very user friendly for litigants in person. Professor John Baldwin found that “at least three quarters of the litigants included in [his sample of county court small claims hearings] could be described as broadly satisfied with the way that the hearings in which they had participated had been conducted.” (Monitoring the rise of the small claims limit, LCD Research Series No 1/97 p51.) - an impressive statistic given the implication that at least half those who “lost” are likely to have been “broadly satisfied”. He found that litigants were less happy with open court trials. Rent assessment committees have the benefit of the specialised knowledge of the surveyor/valuer member, but there have been criticisms that, as surveyors in practice are generally instructed by landlords not tenants, there is a perceived bias in favour of landlords. Unlike county courts, rent assessment committees lack interlocutory powers with teeth – there is no power to impose effective sanctions on those who refuse to comply with directions. (See e.g. the Rent Assessment Committee (England and Wales) 1971 SI No 1065, the Rent Assessment Committee (England and Wales) (Leasehold Valuation Tribunal) Regulations 1993 SI No 2408, A brief history of a tribunal  JHL 31 (among other things complaint about absence of power to subpoena) and Leasehold Valuation Tribunals: the future  JHL 53.) Litigants complain about inconsistency in both county courts and rent assessment committees – although both the Judicial Studies Board and tribunals are addressing this. There is now a national training programme for tribunal members. The Judicial Studies Board organises three-day civil continuation seminars for all judges which include sessions updating housing law. It is about to publish a new Benchbook with a significant section on housing law and is planning the production of an inter-active CD-rom with training on housing law for judges.
Sir Andrew Leggatt is right when he proposes that these are issues that should be considered as part of the Law Commission’s review of housing law. (See The Law Commission’s Reform of Housing Law: a Scoping Paper, available on the Law Commission’s web-site www.laawcom.gov.uk.) The mechanisms for the resolution of housing disputes are inextricably linked with the substantive law, not least because primary legislation is clearly necessary to reform the current jurisdictional tangles. As Professor Martin Partington has said (Questions of jurisdiction – deciding housing cases  JHL 1) this is an issue “that refuses to go away”. It should though form part of a wider debate among all those involved in housing law – lawyers, bodies representing all sectors of landlords and tenants, advice agencies, academics and the judiciary/tribunal members – perhaps through the columns of this journal.
Against this background, there are two possibilities which are worth considering. The first is to introduce a flexible form of “housing ticketing” for county court district and circuit judges. In his final report, Lord Woolf, referring to housing cases, called for “a much higher degree of specialisation among judges” and for “more training to ensure that they are aware of the special problems in this area” (Access to Justice Final Report p198). Judicial ticketing works well in other areas (e.g. public child care, rape, murder etc). The additional training and experience of “ticketed” judges increases specialisation, without losing positive cross fertilisation from other cases or flexibility in listing claims. It might not though be practical to limit the hearing of all housing cases in county courts to ticketed judges.
The second is to bring much (or even all) of the Rent Assessment Committee/Leasehold Valuation Tribunal jurisdiction into county courts, to be heard by ticketed housing judges (either district or circuit judges depending on value) with surveyors/valuers sitting as assessors appointed under CPR 35.15. It might well be that during a transitional phase, suitable existing legally qualified RAC/LVT chairmen and women would be appointed as ticketed deputy district judges. This might not provide all the advantages of a fully-fledged housing court, but it would certainly be an improvement on the current position.