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New Housing Court: is it needed? A comment on the Government’s consultation

15.11.2018

By Andy Lane

On Tuesday, the Ministry of Housing, Communities & Local Government (MHCLG) "unveiled" Housing Court proposals, though in reality the consultation document – Considering the case for a Housing Court – A Call for Evidence - is woefully short on detail.

The overarching objective appears to be for "faster and more effective justice in the event of property disputes", and given that the court system is bedevilled by delays, understaffing, last-minute adjournments and a lack of judges, that is certainly to be welcomed. However, as always, the devil will be in the (for now missing) detail and subject to sufficient funding. The MHCLG has also just produced A qualitative research investigation of the factors influencing the progress, timescales and outcomes of housing cases in county courts.

The MHCLG's website characterises what the Government are seeking views on as the:

  • Private landlord possession action process in the county court
  • User experience in both the county courts and the First-tier Tribunal for property cases
  • Case for a new Housing Court
  • Case for other structural changes such as an extension of the remit of the property tribunal

The consultation itself is also split into four parts – the private landlord possession action process in the county court, enforcing a possession order, access to justice and the experience of court and tribunal users, and the case for structural changes to the courts and the property tribunal.

The fact that some housing/property disputes are dealt with in the First-tier Tribunal (Property Chamber) and some in the County and High Courts is not something that has gone unnoticed by either the Government or judiciary.

The Civil Justice Council produced an interim report in 2016 which certainly encouraged greater cross-over between tribunals and county courts on the assumption that, though the preferred option, the "creation of a Housing Court or Tribunal...is unlikely to happen".

Two years on such caution may be now misplaced, though it is suggested that what both social landlords and tenants want, under whatever structure, is:

  • Fair access to court/tribunal for all parties - see Q18 and Q22 to Part 3 of the consultation
  • Effective costs regimes
  • Genuine availability of legal advice for tenants – see Q18 to Part 3
  • Swifter resolution of disputes - see Q9 to Part 1

My own view is that in addition, and this is of course also a resource-centred approach, designation of cases to named and allocated judges on any matter going to a trial would greatly improve the quality and efficiency of housing cases in whatever setting.

The final part of the consultation asks the bold question at Q25 – Do you think there is a case for a specialist Housing Court? - and in the next question invites you to define the limits of such a Court. This part of the consultation, and the following questions, is in many senses the most important feature of this call for the call of evidence.

Again, my view is that I am not as yet convinced by the need for a specialist Housing Court, and insofar as any transfer of "business" from the county court to tribunal is concerned it seems to me that the only area where this should be seriously considered is in respect of disrepair and (the Magistrates' Court issue of) statutory nuisance claims.

Whatever your view, however, it is important that the Government hears it.

The consultation closes at 11.45pm on Tuesday 22 January 2019.