Shelter court duty solicitor Ruth Camp shares expert tips and tricks to help advisers get the best outcome from a housing possession hearing.
Get to know your court community
You're likely to encounter the same people if you attend court regularly. Having a good working relationship with housing officers and solicitors agents helps when things get adversarial in court. Perhaps your local judge might even be happy to have a chat outside the hearings.
Attending your local housing court user group is a great way to meet the court 'regulars' and keep up with local and national developments.
Make friends with the court usher
Your court usher is your new best friend. Lots of defendants attend court without knowing advice is available. The usher at my local court is excellent at making sure that everyone who comes in gets advice. She asks people "do you want to talk to Shelter?" and explains what to expect.
Ushers are your conduit to the judge. They might be able to make adjustments to the list to allow you to spend more time with your client before the hearing.
Be prepared for security checks
Security guards are present at court buildings. You might have your belongings searched or even a personal search. Find out what the banned items are as you will slow down the entry to court.
In some courts, searches can be very thorough which can delay you and your clients reaching court, so allow plenty of time.
Find out what interests your judge
How does your judge exercise their discretion? Arguments that fly in one of my courts don't fly in the other. Remember what works and what doesn't, to help make sure you take the right angle next time.
If you know what arguments your judge finds persuasive then you might have the edge, and you can use it to your client's best advantage.
Take copies of legislation or forms
Duty advice is different from normal casework, where you would have time to thoroughly research a point of law. On duty, you could be faced with a tricky section 21 case, with only a few moments to form the points you will present to the court in your client's defence.
You might not have access to your usual online resources, especially once you get into the court room. This is where preparing paper resources in advance comes in useful.
Having a few key documents can help you to identify a defence or persuade a judge there's enough to grant an adjournment.
Section 21 flowchart
Nearly Legal's flowchart contains all the technical defences to section 21 claims.
There are countless times when you wonder to yourself when the Deregulation Act defences came into force and what tenancies they apply to. Often you need to work through steps, which having a copy of the flowchart helps to do. Your judge will likely thank you for it, because in my experience they like to look at it too.
Standard forms of possession notice
Form 6A and Form 3 are the standard forms for possession notices for assured and assured shorthold tenancies. Having spare copies means you can compare what must be on a form for it to be valid with what the landlord has served.
If the landlord is using section 21 or the mandatory rent arrears ground 8, they cannot get a possession order if the form is not valid, so this is vital to check.
The court clerk might let you see a copy of the notice on the court file, if your client doesn't have a copy with them. The claimant's representative should certainly have a copy as part of their preparation for the hearing.
Form N244 to make an emergency application
Have a spare N244 application form. This form can be used in to apply to set aside a possession order or apply to suspend a warrant in an emergency. If the defendant turns up late and an order has already been made in their case, you can give them the form and explain how to complete it, or help them yourself if you have time.
The client doesn't normally need to provide much detail on the application form, but they might need to submit evidence or a witness statement later.
Mortgage legislation and precedents
Mortgages can seem a mystery to housing advisers as we don't deal with them often as part of our casework, and the law is very different from rent possession. Having the relevant legislation printed off can help you to remind yourself exactly what discretion the judge has to suspend or delay possession.
Section 36 Administration of Justice Act 1970 and section 8 Administration of Justice Act 1973 combine to provide the framework for most residential mortgage repossession.
Time orders provide the court with a wider discretion in cases where they apply, but the law is complex and the order can be tricky to get. In practice you are more likely to get an adjournment if the judge things a time order might be appropriate in the case.
Shelter's time orders toolkit contains useful precedents to help argue for a time order more succinctly.
Hourly rates for costs
Having guideline hourly rates printed out can help you to challenge excessive costs.
There are different bands depending on the experience of the person who worked on the case, and different rates depending on geographical location.
Landlord's costs schedules often claim higher than the guideline rates. Having the rates to hand can help you argue for a reduction in costs.
The books (if you have room in your bag)
Having a couple of the key reference books with you can really help if you get a tricky case and need to consult the law in more detail.
Housing Possession Duty Desk - A Practical Guide is packed with things you might not have thought about. It is really good on procedure and rules of court, notices, and grounds for possession. I always have a copy in my bag.
Defending Possession Proceedings is a book everyone should have in their office. It's a weighty tome that you might not be able to carry around or to court, but seriously important for checking the law.
Support your client through the process
Clients attending a possession hearing are very often anxious. They don't know what to expect, and feel frustrated that they haven't been listened to, don't know their rights, or understand the process.
One recent client of mine was upset because he was facing possession action having been a faultless tenant for 15 years. He paid his rent on time, kept the house and garden in a good state, and even walked the neighbours dogs. Unfortunately the landlord wants him to move out because they want to sell. It's hard for the client to come to terms with that, because people associate being taken to court with having done something wrong.
As a duty adviser you can give the client some reassurance of being listened to, whilst gathering the key information and presenting it to best advantage. Just taking the time to listen can help your client feel better and help them to feel empowered.
Get to the heart of the problem with a prompt list
Have a prompt list of questions to make sure you get to the heart of things like disrepair. It's easy to miss things, especially if your client wants to focus on other problems they might feel are more important.
Your template or prompt list should ensure you gather all the information required by the Legal Aid Agency if you are billing for the work.
Dust off your negotiating skills
Duty advisers have negotiating superpowers. The pressure to find a resolution is acute at court. Judges will often ask when you enter the courtroom if you have agreed anything, so it's better if you have tried to reach an agreement.
What you can negotiate
Remember that going in to negotiation with a housing officer or mortgage lenders' agent, everything is on the table. Not just repayment amounts, but what sort of order you want the judge to make. If the case can't be dealt with on the day, what directions do you want?
Consider things like counterclaims, delays for orders to take effect, and costs orders. Try to agree what you can in advance, even if you can't agree everything about the case.
Listen to what your client wants
I recently advised a client with £20,000 in rent arrears who had been living in a property with substantial disrepair.
On questioning the parties, it turned out the landlord was satisfied with a possession order, and the client wanted to leave. The landlord knew the prospect of getting the arrears repaid with the client out of the property were poor, so agreed to drop the money part of the claim.
That could have been a difficult hearing, but in the end everyone came away with what they wanted without having to argue in court.
When the landlord is representing themself
A word of caution about negotiating with litigants in person. A private landlord representing themself in court can sometimes feel as though they are being pressured, or aren't sure what they are agreeing to. They might not understand the nature of 'without prejudice' negotiations.
It's fine to negotiate with landlords in person, but I am always sure stay in an open area and explain clearly who I am and what my role is. That way, my role cannot be misunderstood and the landlord does not feel pressured.
Expect the unexpected
Most duty advice involves rent arrears cases, mortgage possession, and section 21. When something different comes up it can take you by surprise. Over the years I've had possession of alms houses, mental capacity challenges, LPA receivers taking possession, and complex insolvency and probate cases.
These legal issues can be harder to unpick and resolve due to the circumstances of people attending for duty advice. People often turn up to their hearing without court papers or details of their income or benefits. They might be dealing with a mental health problem, language barrier, or disability. These are all good reasons to ask the court to adjourn the case.
Ask for the time you need
Judges usually understand that duty advisers are on the back foot. They know we don't always have all the details, but they are still happy to see us as we are a voice for the tenant in court.
If you need more time to deal with a tricky case, ask for it. A judge will usually grant an adjournment or even stand the case down until later that day to give you more time.
Reading and resources
Housing Possession Duty Desk - A Practical Guide is written by Simon Mullings and Sue James and published by Legal Action Group.
Defending Possession Proceedings is written by Jan Luba, John Gallagher, Ann Bevington, Sam Madge-Wyld and Sarah Steinhardt and published by Legal Action Group.
Visit Legal Action Group's website for information about its publications.
Shelter's online resources
Shelter Legal is the essential online guide to housing law for professionals. Read more about possession and eviction on Shelter Legal.
Shelter's Practical Resources has templates, tools, and guides to support advisers with casework. It includes the time orders toolkit.