Lessons in preparing to attend a possession hearing from the Housing Loss Prevention Advice Service.
Walking into a County Court for a possession hearing can be incredibly overwhelming for anyone, particularly those who may be at risk of losing their home. It's a strange environment with unwritten rules and etiquette.
Knowledge is power. Helping tenants to prepare for what to expect at a possession hearing can help them navigate a stressful event and lead to better outcomes.
Preparing for the hearing
There is a duty adviser present at court to help people facing possession proceedings. The duty adviser can get to work quicker if the tenant or borrower has key information in advance.
Here are some tips you can discuss with people to help them prepare for their court hearing.
attendance is essential — without attending court, a court duty adviser cannot provide advocacy. A tenant should always attend their hearing
taking documents is key — benefit statements, rent statements, bank statements, letters of appeal, emails and correspondence. Documents can make or break a case, they provide the court duty adviser with tools to advocate effectively
what court is like — attending court can be stressful, knowing what to expect can reduce anxiety and stress
advocacy works best when there are clear facts — write down key facts and dates for the adviser
the court duty adviser is there for the tenant — getting the best outcome for a tenant is a court duty adviser's main priority, their advice is based on the tenant's instruction and desired outcomes
What to expect when arriving at court
The high level of security at court can be a shock for people who have not attended before. The security guards job is to keep everyone safe. The process is similar to airport security, they will check your bags and do a body scan.
Items such as penknives or recording equipment that are not allowed will usually be returned to you when you leave.
A duty adviser arrives at court
The adviser hands her laptop and bag to the security guard. The guard searches it. She has done this many times before but it’s still strange, it always strikes her how intimidating it must be for tenants coming here for the first time. She has a water bottle with her, it's clear plastic. The security guard asks her to take a sip to show it's not harmful.
Who's who at a possession hearing
There are several key players at the court. It is helpful to know where to find them and what their role is.
In the County Court
The people involved in the County Court are:
court usher - manages the listings, administration and ensures proceedings run smoothly
court duty adviser - provides free, impartial advice and representation to defendants in possession proceedings
landlord's representative - usually a lawyer or agent acting for the claimant
District Judge - presides over cases in the County Court
The role of a duty adviser
A court duty adviser is a person available at court that provides free, impartial advice and representation to defendants in possession proceedings.
To make contact with the duty adviser the tenant must check in with the usher. The usher keeps track of who is present for their hearing and will usually ask if they want to speak to the court duty adviser.
Discuss any needs with the usher, such as representation from the duty adviser or requirement for a translator.
A duty adviser only has a limited amount of time with each client before the hearing to get all the facts, this could be a matter of minutes in some cases.
The court duty adviser is provided under HLPAS by the Legal Aid Agency to provide free, impartial advice and advocacy to people defending a possession claim.
What the adviser will ask
Court duty advisers must be highly skilled in establishing the legal position of a case quickly in a high pressured environment.
They will need to know:
Is the notice valid?
Have the arrears amounted due to a benefit issue?
Is there a mandatory consideration or benefits appeal outstanding?
Has the client applied for a discretionary housing payment?
Does the client have any vulnerabilities?
A duty adviser interviews the client
The client is in tears, scared she will be made homeless today. The adviser only has five minutes until the hearing so she must bring order to the narrative quickly. She jots down the important notes as her client speaks.
The client is a single mother with a disabled child. Her social landlord has given her a section 8 notice seeking possession due to rent arrears.
The adviser quickly checks her reference book to make sure she’s got it right. The judge must order possession where the tenant owes more than two months’ rent, so this next question’s crucial: how much rent is owed?
She owes more than four months’ rent, over £2000, but the client explains this is because her child’s disability living allowance was cancelled. She applied for a review of the decision but is still waiting to hear back.
Negotiating with the other side
It is best to try and reach an agreement with the other side before the case is heard by a judge.
Being able to offer agreed terms to the judge can save time. Any agreement between parties is not binding and a judge could make a different ruling after hearing the case. If an agreement is made to give up possession this must be carefully worded to make sure there is no negative impact later down the line if a homeless application is made.
Negotiation is a standard part of the process and will be handled by the court duty adviser. This can be beneficial where the relationship between the landlord and tenant has broken down.
If no agreement is reached, then both parties will present their case to a judge in a hearing.
The parties negotiate
Court duty adviser: Hello, I’m representing the defendant today under the duty scheme. Can I just check, are you seeking outright possession today?
Landlords representative: Yes that’s right, we’re asking for an outright possession order on the mandatory ground 8. The tenant is over four months in arrears and she hasn’t engaged with us, despite numerous emails and phone calls.
Court duty adviser: Our client is here today, she’s had to bring her disabled child with her as she was unable to arrange childcare at short notice.
The child’s Disability Living Allowance claim has been stopped, the drop in income is the cause of the arrears. Our client has applied for a mandatory consideration. If she’s successful, she will receive an additional £470 a month, which will fully cover her rent and a payment towards the arrears.
I’d also highlight that there’s no evidence your organisation has followed the pre-action protocol which we will highlight to the court.
Our proposal is for the proceedings to continue under Grounds 10 and 11 and the matter be adjourned for eight weeks.
This would allow the benefits appeal to conclude and for realistic payment proposals to be made, avoiding unnecessary costs and the risk of eviction.
Landlords representative: I can see the child’s disabilities are significant, which we were not aware of. I will need to call the landlord for instructions.
The representative steps outside the waiting room, phone pressed to his ear, pacing by the vending machine. After a few minutes, he returns.
Landlords representative: I’ve spoken to the landlord, and they’ve authorised me to proceed on Grounds 10 and 11 given the circumstances and the child’s disabilities. They are looking for a suspended possession order today though and will not agree to an adjournment.
By persuading a landlord to drop the mandatory ground, the duty adviser has ensured the court has a wider discretion to decide a fair outcome to both parties.
What happens in the hearing
Tenants attending court may worry about standing up in front of a judge when they have no legal knowledge or experience of litigation. The court duty adviser is there to provide advocacy, meaning the tenant does not have to represent themselves.
Possession hearings are listed for ten minutes and tend to be much shorter than a client expects.
"I didn't know there would be anyone here to help me. I thought I was alone”
Inside the courtroom
A County Court room isn't how it looks on TV in a Suits episode. The rooms are usually small.
The judge sits behind a bench at the end of the room. There are tables and chairs on either side of the room that face the judge. The landlord or their representative sit on one and the court duty adviser and the client sit on the other.
A judge hears the case
Landlord's representative: Judge, after speaking with the defendants representative today and taking instruction we are proceeding on grounds 10 and 11, section 8 of the Housing Act. The monthly rent is £900 and the arrears now stand at £2250. The tenant has not made sufficient payments to reduce the arrears below two months and therefore the landlord is entitled to possession.
The defendants representative has informed us of the circumstances that have led to the arrears. Due to the significant disability of the child and the outstanding benefit issues we are open to a suspended possession order.
Judge: Thank you, if we can hear from the other side, how do you respond?
Court duty adviser: Judge, I am representing the tenant today. Miss X was in receipt of disability living allowance for her child who has cerebral palsy. This payment was stopped unexpectedly and is the reason that the arrears have accrued.
I am instructed by Miss X that she has made an application for mandatory reconsideration in addition to an application for a discretionary housing payment.
It is our position that a suspended possession order would not be proportionate in these circumstances, particularly as the landlord has not followed the pre-action protocol or made adequate attempts to explore alternatives before issuing proceedings.
The Judge's decision
There are several possible outcomes from a possession hearing.
outright order - the grounds for possession have been met and possession is awarded to the Claimant in the proceedings by a certain date
suspended possession order - grounds for possession are met and possession is awarded but suspended on terms that the Defendant must comply with. If the terms are complied with the Defendant can remain in the property, if they are not complied with the Claimant can apply to court to enforce the possession order
adjournment to a fixed date - proceedings are postponed and the court will set a date for a further hearing
adjournment generally on terms - proceedings are postponed indefinitely on terms that the parties must adhere to. If the Defendant fails to keep to the terms of the adjournment, the Claimant can apply to the court to restore the claim
claim struck out - the claim is dismissed, this could be due to procedural issues or the grounds for possession not being proven
If the proceedings are too complex to resolve in an initial hearing, the court will likely list the matter for a second hearing or make an order for directions which provides the parties instructions regarding further steps to be taken in the case.
What counts as a good outcome
It is sometimes thought that a suspended possession order is a good outcome as it means the tenant can remain in their home. But here's the issue, a suspended possession order is still a possession order, it has terms that the tenant has to abide by.
Suspended possession orders can remain in place for many years after the hearing, even after arrears are resolved.
An adjournment keeps eviction off the table for a defined period and allows the tenant time to seek out support or achieve outcomes.
An adjournment gives the tenant time and a chance to eliminate the threat to the home completely, whereas a suspended possession order is a ticking clock.
A judge makes a ruling
Judge: Given the circumstances, I am adjourning this matter for the earliest available date after two months. This will allow for the tenant to resolve the benefit issues and for the parties to explore realistic payment options if arrears remain.
No order for possession will be made today, but Miss X, I encourage you to engage with support and to make payments whenever you can during this time.
What happens after the ruling
Once the judge has made their ruling both parties thank the judge and are able to leave the court room.
The court duty adviser will explain what the court order means and what it requires the tenant to do. They will also send a letter the following week that explains the outcome and advice for next steps.
I thought we were going to lose everything today. I feel like I can breathe again, thank you.
Find out more about the Housing Loss Prevention advice service here
