Lawyers fear the law commission's drive to step outside the courts in housing disputes will undermine the justice system, reports Grania Langdon-Down

Aproposal by the Law Commission that a significant number of housing disputes should be transferred from county courts to tribunals prompted such hostility from housing specialists and judges that the commission dropped it. But this is not the end of the matter.

Its report on housing dispute resolution, part of the commission’s programme of housing law reform, says transferring cases to the Residential Property Tribunal Service (RPTS) should still be a long-term goal, subject to testing and evaluation.

The report, which promotes alternative means of resolving disputes, together with the development of phone and internet housing information and advice, has provoked a sharp response from practitioners.

Gareth Mitchell, a committee member of the Housing Law Practitioners Association (HLPA), says: ‘One of the striking features of the Law Commission’s report is that it fails to acknowledge the role that skilled housing solicitors can play in ensuring that housing disputes are resolved proportionately, or the detrimental impact the Carter reforms have had on solicitors’ ability to do this. In particular, the new fixed-fee rules for legal help have made it even more difficult to resolve housing disputes other than through litigation.’

Unusually, the report looks at the broader social issues of housing, rather than at reform of substantive law. At the heart of its recommendations is the proposal that those providing housing advice and assistance should develop services based on a ‘triage plus’ system.

This starts with initial diagnosis and referral to the best route for resolution, moves on to intelligence-gathering on how problems arise, and concludes with feedback to the agencies involved on how to improve decision-taking and prevent disputes happening.

The commission goes on to say that alternative dispute resolution is ‘an area in need of repair’ and that mediation, ombudsmen and complaints procedures need to be more actively encouraged.

Where disputes come to court, the commission accepts that it cannot persist with the proposal in its consultation paper to transfer cases away from the county courts. However, it still recommends that disrepair cases and park home cases should be transferred to the RPTS, which should be incorporated into the new unified Tribunals Service.

It also wants the government to pilot schemes to test the transfer of homelessness statutory appeals and other housing-related judicial reviews to the new Tribunal Service’s upper tier.

Professor Martin Partington, the commission’s special consultant on housing law, who is in charge of the project, says: ‘Everyone agrees that the law regulating residential landlord and tenant relationships is extremely complicated. The question whether courts should be used for deciding housing issues or whether we should consider the Australian and New Zealand system of a dedicated, informal tribunal was raised during our Renting Homes inquiry in 2006.

‘However, the government was not enthusiastic about us doing a narrow project on court vs tribunal and asked us to look at the broader issue of resolving disputes and cutting off the problems as early as possible.’

This prompted the ‘triage plus’ proposal, though he says the commission took on board the views of practitioners and other agencies who said that they could only do the work if they were funded properly. ‘We have bright ideas but no sack of gold,’ he concedes. ‘The Legal Services Commission (LSC) would be the primary source but we all know what problems they are facing.’

Sally Morshead, former chairwoman and current member of the Law Society housing law committee, is managing solicitor with Shelter. She says ‘triage plus’ is a ‘good idea in principle, though I don’t see how it differs from what happens at the moment.

‘Everybody accepts there needs to be better links between advice organisations and that is already happening. It is the one thing the LSC has been right about. Again, we applaud the idea of feedback but there isn’t the funding for it.’

Mitchell, a solicitor with London firm Pierce Glynn, agrees. ‘The Law Commission’s report implies that the failure to address problems [such as the fact that] homelessness gate-keeping lies with housing advisers. I find that a little hard to stomach. Of course housing solicitors try to resolve problems with the way public authorities behave: for example, look at the work done by housing solicitors in law centres and who work for organisations like Shelter, which have traditionally placed a very high emphasis on public policy work. The problem is not with a lack of feedback but with public authorities cutting corners to save resources and to meet government targets – problems that the Law Commission seems to be oblivious of.’

Increasing access to good quality, independent, diagnostic advice is clearly a good thing, he says: ‘But where is the money going to come from to fund that? It seems that the Law Commission’s response is that it would like to see money directed away from housing litigation and invested instead in providing more basic advice: an approach that chimes with the government’s promotion of services such as CLS Direct at the expense of specialist housing solicitors. But what those on the ground will tell you is that low-skilled, low-cost interventions by themselves rarely result in effective, long-term solutions to housing problems.’

Mary Martil, a partner and head of social housing at Marsons in Bromley and vice chairwoman of the Social Housing Law Association (SHLA), raises the question whether triage plus will address the ‘underlying problem in the rent arrears cases that clog up the county courts – that a significant proportion of tenants choose not to prioritise the payment of rent, or the claiming of housing benefit, in the justified belief that they will not be effectively penalised for that failure.

‘In those cases where tenants do seek advice in good time, and which therefore already tend to be readily resolved, triage plus should assist by reinforcing existing good practice and providing a means for advisers to feed back to decision-makers.’

Much to the annoyance of practitioners, the commission’s report singles out the LSC’s Community Legal Advice Centre/Network (CLAC/CLAN) model as a way of developing the triage plus system.

Morshead is very unhappy about the commission’s ‘blessing’ of the CLAC system. ‘They are a crude cost-cutting measure by the LSC. I can’t see it benefits anybody to close down a number of very good, well-functioning agencies to create one new one.’

Mitchell agrees: ‘The Law Commission’s support for CLACs is ill-informed and premature. Of course providing joined-up advice services is a good thing, but the concerns expressed by the Constitutional Affairs Select Committee about the competitive tendering process – the problems with conflicts of interest where there is only one legal aid supplier in each area and the lack of independence of CLACs from their local authority funders – are all ignored by the Law Commission.’

When it comes to alternative dispute resolution, the report praises the model of the Tenancy Dispute Service, set up in 2003 as an independent, not-for-profit company to resolve complaints and disputes arising in the private rented sector. TDS chief executive Lawrence Greenberg says they closed 2,000 disputes last year.

The commission also promotes the ombudsman service, which, Partington says, can resolve disputes ‘cheaply and efficiently and without the anxiety and expense of going to court’.

Mitchell disagrees: ‘The concerns that housing solicitors have about alternative mediation is not so much that it is intended to cut lawyers out of the loop – the reduction in legal aid suppliers means that most practitioners have far more work referred to them than they are able to deal with – but that the alternative dispute mechanisms that are available offer a poor substitute for court-based dispute resolution.

‘Why, for example, does a complaint about local authority housing office’s failure to fix a leaking tap require a three-month, three-stage internal complaints process, followed by a Local Government Ombudsman investigation which typically takes three to six months?’

The third strand of the commission report on transferring cases to tribunals is the most controversial. Partington admits: ‘Even the Residential Property Tribunal Service said “think about the implications in terms of costs and administrative upheaval”. So we rather rode back from our provisional view that there should be a substantial redrawing of the boundary between court and tribunal. We still see merit in a specialist tribunal, but for the moment we have ended up recommending the status quo with some experimenting in disrepair cases.’

He accepts the legal profession’s concerns that a shift of cases from courts to tribunals could mean legal aid disappearing altogether. ‘A lot of people in the real world weren’t willing to buy into the argument that the LSC would suddenly start funding tribunal work.’

The not-for-profit sector also raised concerns about funding. However, Partington says: ‘The LSC is driving the debate about reducing spending on litigation and putting more investment into advice services – our paper reflects that inevitability.’

However, Mitchell counters: ‘Resolving housing disputes in tribunals would be an improvement if housing tribunals were better at resolving housing disputes: but there is no evidence to support this. County courts can be slow, and the time allocated to certain types of cases, for example undefended possession claims, is frequently inadequate. But these are resource issues, not issues that require transfer of jurisdiction to a housing tribunal.

‘As for the legal aid implications, the Law Commission may say that the proposals are contingent on there being no reduction in the availability of legal aid, but the commission has no control over this and, with the LSC’s current emphasis on cost-cutting, practitioners are right to be concerned that the LSC may use any transfer of jurisdiction to limit the availability of legal aid.’

Morshead warns that the not-for-profit sector is already struggling under fixed fees. ‘In theory these don’t apply in litigation. If you win and get a costs order, you recover your costs from the other side at the normal inter party private rates of £200/£300 an hour.

‘However, we mainly do public law homelessness applications, judicial reviews and some possession cases. We are very successful but we rarely get costs orders because of the type of cases we do, so we get paid a fixed rate of £70 an hour in London and £66 an hour outside London.

‘Private practitioners do the disrepair work because that is lucrative – they wouldn’t be able to survive if they were routinely doing work for £70 an hour or legal help at £53 an hour.’

She believes county courts deal with cases well, though she supports the commission’s proposal that judges should be ‘ticketed’ to ensure more consistency. ‘I agree with District Judge Wendy Backhouse’s response to the commission’s consultation paper that its recommendations come from an “out-dated and stereotyped image of the county court as hide-bound and inflexible and a rather idealised image of tribunals”.’

Judges involved in housing work made their opposition very clear. However, Partington argues this was partly because housing possession cases are a ‘good earner’ for the Courts Service. ‘Every time a landlord or mortgage company takes possession proceedings, they are charged a fee and that helps keep the Courts Service afloat. I am not sure, frankly, that was their best argument. It is a consequence of the Treasury decision that civil courts have to fund themselves.’

Kate Priest is head of housing (legal) with Birmingham City Council, which has the largest housing stock in the UK. She is concerned that transferring housing cases to tribunals could have the effect of ‘dumbing down’ the status of housing legal work, at a time when fewer lawyers are becoming specialists in housing law and dedicated lawyers with decades of housing experience are coming up to retirement.

However, she adds: ‘Housing cases do fall into different categories of complexity and, in the case of housing disrepair claims, the council would welcome a simplified system of dispute resolution. In Birmingham, legal costs paid out to tenants’ solicitors, compared to the compensation paid to tenants themselves, have frequently not been proportionate.’

For Partington, one area which needs exploring is the new tribunal service’s upper tier, which will be broadly equivalent to the High Court in status.

He explains: ‘Within that tier, there is going to be a property chamber which could become a specialist appellate level jurisdiction for housing and homelessness disputes. One of the complaints we had is that, with lots of individual judges, you don’t get the specialism that housing law requires so jurisprudence can be developed.’

He is also keen to see the government adopt their recommendations for reforming housing law to remove the ‘procedural pitfalls that trap the unwary’ – a very important step, according to Law Society President Andrew Holroyd, who says: ‘The best way to resolve disputes is to simplify housing law.’

For Morshead, the problem lies in the commission’s approach ‘that what we do involves a sledgehammer to crack a nut’.

‘However, housing is a legally complex area. The commission’s Renting Homes recommendations would make things less complex, but this is an area which has huge consequences for individuals and they need to be properly advised.’

Grania Langdon-Down is a freelance journalist