Mark Bowden shares experiences from Shelter's court duty advisers acting for tenants and borrowers in possession proceedings.
Published October 2021
A new process for possession claims
In March 2020, regulations imposed a stay on possession claims by landlords and mortgage lenders. From September 2020, claims have been allowed to proceed with a new process involving review dates followed by substantive hearings.
Duty advice, delivered in part by Shelter advisers and solicitors, alongside colleagues in law centres, Citizens Advice and private law firms, has been available to defendants throughout.
From the beginning of the pandemic, Shelter has worked with a cross-sector group reacting to the ever-changing landscape after the first lockdown. We joined the newly formed Master of the Rolls (MR) working group, with Shelter Cymru, the Housing Law Practitioners Association (HLPA), The Law Centres Network, and Advice UK. Together we were able to contribute to measures intended to avoid a wave of evictions during a time of unprecedented crisis, and serious health risk to many thousands of people.
The work of the MR group in developing the ‘Overall Arrangements’ contributed to the retaining of tenants’ and borrowers’ rights to access to justice. This was done through existing court duty schemes, but with extended scope for earlier support through the ‘review’ hearing process.
Shelter’s Professional Support Lawyers created internal forums to share information and experiences of housing advice in the pandemic. These forums proved invaluable in keeping our advice teams and other Shelter colleagues up to speed on the frequent and rapid changes to law and procedures. They provided the knowledge to feed back to the MR group on the application of the Overall Arrangements and the realities of their operation at court.
The wider network of colleagues across the sector, coordinated through HLPA and essential sources such as Nearly Legal, shared intelligence about changes in law, procedure and guidance, and their impact on our collective work on behalf of defendants. That included spotting by which method (generally Twitter) and at which hour (inevitably the 11th) the latest change had been 'publicised'.
Access to justice
Duty advice has been delivered face to face, remotely, and via a ‘hybrid’ model, where one party joins remotely. This new system, alongside other measures which have reduced the demands on courts and providers to far lower than typical levels, have enabled remote advice to be provided reasonably successfully.
When I'm doing the hybrid hearings, sometimes the microphone won't pick up what I am saying. Then the judge is in a position of having to summarise what I've said to the other side, which becomes a protracted process.
The courts need extra time to deal with hearings partly because they've got to do things that they didn't have to do before.
- Richard, a solicitor in Norwich
HLPA states that remote hearings cause ‘intense difficulties’ for defendants and their representatives. They provided compelling evidence to the Court of Appeal in Arkin v Marshall & Anr.
I think intervention is more difficult remotely. Sometimes it's harder to get across the implications to people you are advising. I end up drawing diagrams, because people can visualise arrows and pound signs better than me using legal language.
Suspended possession orders aren't jargon to us, but they are to most people.
- Catherine, a solicitor in Dorset
Supporting vulnerable defendants
The changed circumstances have resulted in reduced demands on courts and providers. Recent experience of the new system, which generally operated well against that backdrop, should not be relied upon in support of wholly embracing digital or remote delivery of justice. Much greater exploration of the impact on vulnerable defendants is needed. There have already been studies which suggest a shift to digital or remote advice provision is likely to have a disproportionate impact on vulnerable people.
Dr Natalie Byrom of the Legal Education Foundation has done excellent work on the impact of proposed digital reforms in general and the impact of Covid-19 on access to justice for vulnerable people in Digital Justice: HMCTS data strategy and delivering access to justice and Understanding the impact of Covid-19 on tribunals: The experience of tribunal judges.
We have concerns about the most vulnerable defendants who tend not to engage with remote advice at all, either because of the lack of technology or other barriers. It is important that all defendants are understood, and that they have opportunity to put their side of things across and, ultimately, to have a fair hearing. Our sense is that is less likely for certain groups where hearings are conducted remotely, a view supported by the research and evidence.
There are defendants who are unable to read, have learning difficulties, or mental health problems. They might struggle to understand what's happening, but you can't see their reaction remotely. You don't know when things need more explanation, or whether to draw a picture or give the information in a different way.
- Catherine, Dorset
There are also less tangible and quantifiable losses from a move to remote or digital advice. The importance of being able to see, hear, support and reassure clients with gestures and expressions during a hearing, which simply cannot be replicated remotely.
With disrepair, that's something that you'd have to sit down and explain, the difference between mould growth, or rising damp, those sorts of things. I draw pictures to help, when people are describing where certain things are or what they look like. Communication is much better face-to-face.
- Ann, a legal aid supervisor in Plymouth
Duty advisers and solicitors have faced their own challenges dealing with possession cases remotely. Being able to see that notice was given correctly, or the grounds of a claim, can be difficult compared to face-to-face advice.
I have gone into hearings with absolutely no idea what the grounds for possession are. The courts have been good in terms of running through a summary of what's before them, so that you can at least get up to speed, but you’re really having to think on your feet.
In some cases there's been little opportunity to be able to challenge any of the issues on the facts. Some defences that come out of defective notices are probably slipping through the net.
- David, a senior housing adviser in Norwich
Higher levels of rent arrears
The level of arrears is higher. Much, much, much higher. With private sector tenants, I’ve routinely seen seven or eight thousand pounds. I had one the other day, nearly £13,000. Our rents are quite high down here but they're not London levels. And I think it's because before they would have been evicted, but they haven't so the arrears kept building.
- Catherine, Dorset
We have seen a significant increase in people falling into rent arrears due to job losses caused by the impact of the pandemic. This issue has been compounded by the unintended consequences of the stay on possession proceedings. People who can't make ends meet have remained in properties which are unaffordable, due to matters well outside of their control.
People don’t come to court because they think there’s no hope. Either they can’t afford the rent anymore, or the arrears are so high they think nothing can be done about it.
- Catherine, Dorset
As the effect of the pandemic has continued, duty advisers have seen many cases with very high levels of arrears. That is somewhat inevitable due to the prioritisation of 'extreme' rent arrears cases in the courts. There remains no meaningful support for those impacted by the pandemic despite Shelter and others making the case for support with Covid-19 related arrears.
Improving outcomes with duty advice
It has been humbling to witness the dedication of Shelter’s advisers in seeking to ensure that those threatened with the loss of their homes during a global pandemic received essential advice and representation. That has often been at the cost of putting their own personal safety at significantly greater risk. Without fail, they have stepped up to the challenges of the last 18 months with their sole focus being on helping people facing unimaginable distress and hardship.
I had a client with high rent arrears, but it wasn’t her fault. She’d lived in the UK since she was a child, she’d never claimed any benefits and she hadn’t had immigration advice. When she separated from her husband, she had to claim Universal Credit, but it took five months to get her status sorted out with the Home Office. She was living off food banks and was quite ill.
She complied with a repayment arrangement with her housing association landlord, but they reactivated their claim anyway. Because the arrears were high, they wanted a suspended possession order, but they hadn’t told the court she had complied with the arrangement.
We got that adjourned on terms, which I was really happy about because a suspended possession order would have been made if she didn’t get advice.
- Catherine, Dorset
I managed to get the judge to agree to the other side's two witnesses to be cross examined. I think the defendant, even though we lost, at least felt that we’d tested the evidence.
- Richard, Norwich
Shelter were not alone in providing this vital service. Countless other organisations and colleagues across the sector have, as one, met the impact of the pandemic with a singular focus on ensuring access to justice, basic fairness and protection for all faced with the loss of their home at the worst conceivable time. It has been a sobering period and a timely reminder, as conversations continue about the sustainability of the sector, of the profound importance of timely expert advice and of Legal Aid practitioners in particular.