Safe as houses

Having acted for claimants and defendants in possession claims, and also served as the housing duty solicitor at the local county court back when public funding was more widely available, I was looking forward to reading this book.

The background and intention of the text is to provide a guide to advising in the ‘duty’ forum; and also to be a helpful ready reference for the changes in possession proceedings brought about by the introduction of new rules and procedures amid the pandemic.

The preface states that ‘a very high proportion of rent arrears cases have a benefit issue at their heart’. It is not necessarily my experience that benefit payment issues (as in backlogs or confusing entitlements) lie at the root of many rent arrears cases. This may be the case in social housing, but when acting for private tenants and landlords I have found the issue to be more of a budgeting one brought about by the occupier trying and failing to manage the household budget, and not being equipped with the vital life skills, motivation or practical help to be able to do this effectively.

Making last-minute assistance at the door of the court a last resort would be desirable for all involved. Regrettably, the reality was (and is) that many occupiers faced with possession proceedings did not see a need to engage before the day of the hearing. Instead, they worked on an assumption that the court would do the right thing by them on the day.

It was the duty solicitor’s function to ensure the client had realistic expectations about what sort of decision the court might be empowered to make before one could even begin to extract relevant instructions and advise them upon the actual case that they were facing.

I recall entering mortgage possession hearings as duty solicitor dealing with several new client interviews, not necessarily in any particular order, and shuffling through handwritten notes to try to work out exactly which defendant was sitting next to me and which set of circumstances in my notes belonged to them. It was not easy but it was exhilarating, and it felt as if I was performing a valuable function. Thankfully the duty solicitor would also be granted slightly more leeway from the judge in relation to their knowledge of the precise nature of the case before the court.

This book is broken down into useful chapters. The first is on how to use the book and the style of writing is informal, approachable and easy to understand. The authors’ vision really comes through in this chapter. There is a helpful grey box section towards the end which reminds us of the limits within which the duty adviser must work.

The chapter’s conclusion states ‘we hope that we have given you enough form and substance to fight off every landlords’ and mortgagors’ (sic) application for possession’. This seems somewhat optimistic and unnecessarily oppositional. It would perhaps be more balanced to suggest that every application might be fought off where it would be just, proportionate and supported by the procedural rules for the court to allow the occupier the opportunity to do so.

Chapter 3 deals with pre-action protocols, CPR part 55 and practice directions which are all helpfully reproduced in the annexes.

Chapter 4 is on the various types of notice encountered in these proceedings. The introduction has a helpful summary of the issues that arise in determining the validity of a notice, while chapter 5 focuses on defences and counterclaims, including set-off, disrepair and forfeiture.

Chapter 7 relates specifically to registered social landlords, but also acknowledges and helpfully repeats the relevant parts of the advice in chapter 8 covering private sector tenancies. This makes for ease of reference given the inevitable crossover between the two where assured and assured shorthold tenancies are concerned.

There are very helpful bullet point lists in chapter 8, especially in relation to section 21 notice-based possession proceedings.

Chapter 11 moves on to cover mortgage possession proceedings and charging orders, reproducing the relevant sections of the legislation with a useful and informative discussion of the separate parts of the statutory provisions and reference to the case law. There is a detailed outline and analysis of the possibly less well-known powers of the court to vary the terms of the mortgage agreement, including extending the term of payments.

Chapter 12 deals with outcomes/types of orders and is of practical relevance to anyone dealing with these cases at court. There are also a couple of good summaries at the end setting out the points of advice that should be provided to defendants after particular types of order are made.

Chapter 13 relates to set-aside and variation applications. These will often involve last-minute applications made in person by the tenant, in which the duty adviser will need to step in and try to assist the tenant to make the best of the situation.

Chapter 15 covers warrants for possession as well as applications to stay, suspend and set aside. The statutory basis for any extended discretion of the court in relation to the separate types of tenancy that the duty adviser is likely to come across is identified and easily accessible.

Finally, chapter 16 outlines the Housing Possession Court Duty Scheme and also legal aid, including the operation of the scheme and types of proceedings covered as well as how to make a claim for payment via the Legal Aid Agency.

The checklists at the start of the appendices cover most cases that the duty adviser will come across and are helpfully confined to one page each, extracting only the most important information required for the advice that needs to be provided on that day.

Within appendix 3 there are good precedent consent orders that the parties could use in cases where an agreement is able to be reached at review-date hearing stage.

Appendix 7 has an excellent and concise summary of the varying notice periods under the general law and coronavirus amendments.

Finally, within appendix 10 there is helpful information about how defendant insolvency or other matters such as debt relief orders might interact with the matters coming before the duty adviser.

This is a brilliantly useful and extremely practical guide.

Jenny Kemp is an associate at WBW LLP, Newton Abbot