Published: 29 May 2018 by Rhea Newman

At last year’s Conservative Party Conference, Sajid Javid announced that the Ministry of Housing, Communities and Local Government (MHCLG) would consult on the case for a specialist housing court. The government wanted to explore whether a new housing court could improve court processes, making it quicker and cheaper to resolve disputes – particularly for landlords and tenants.

Since this initial announcement, MHCLG has said little publicly about its plans for consultation. However, the idea of a specialist housing court has gained some traction and the HCLG Committee recently urged the government to publish more detailed proposals. This followed the committee’s inquiry into the private rented sector, which concluded a housing court would ‘provide a more accessible route to redress for tenants’.

The majority of landlord and tenant disputes (including possession cases and disrepair) are currently resolved in the county court. And whilst going to court will always be the final resort for resolving these sorts of disputes, the court system has a fundamental role to play in ensuring people can enforce their housing rights.

This blog takes an initial look at some of the challenges with the court system, and what would be essential as part of any future court reforms.

Challenges for tenants

From a tenant perspective, the county court is often seen as too costly and complex to even consider taking a case to court. Citizens Advice research highlights that even amongst tenants who had waited an unreasonable amount of time for repairs, only 1% applied to court to claim compensation. Two-thirds of tenants were put off by the cost and over half (54%) were deterred by the complexity of the process.

For the vast majority of tenants, the inaccessibility of the court system is made worse by the fact that they are unlikely to afford legal advice or representation. Access to free legal advice for housing issues has been hugely restricted as a result of changes following the Legal Aid, Sentencing and Punishment Act (LASPO) 2012. This means many tenants are left to navigate the court system alone, with worrying consequences for access to justice.

Challenges for landlords

Some of these challenges affect landlords too. High court costs, and the fact that a landlord’s possession case may be thrown out because they have incorrectly completed the paperwork, have left many landlords with a negative view of the court process.

In our latest survey, only 25% of private landlords said they had confidence in the court system and only 4% described their confidence as strong.[1] It is perhaps not surprising that the Residential Landlords Association (RLA) has been one of the most vocal in calling for a new housing court (although its arguments have not always been fully endorsed by housing lawyers).

One major source of frustration for landlords is delays in the court system. This is often cited as to why landlords are reluctant to offer longer tenancies, or to let to tenants they perceive as risky.

The RLA article quotes that it takes an average of 42 weeks to complete a possession case.[2] However, the latest statistics published by the Ministry of Justice (MoJ) suggest that this figure doesn’t tell the full story. The average time to complete a possession case varies considerably by tenure, and the latest data suggests the average time for a private landlord is actually 23 weeks – or 17 weeks if looking at the median.[3] Perhaps surprisingly, the average time for an accelerated possession case is slightly higher at 26 weeks (19 weeks for the median) but still well below the overall average for all cases.

With the MoJ’s programme of court closures and ongoing austerity measures, the court system is undoubtedly overstretched. But the above data suggests that the issue of delay might not be as bad as it first appears, although it’s still far from an express service.

The case for a specialist court

Given the barriers that tenants face in taking a case to court, and the lack of confidence that landlords have in the system, there is undoubtedly a case for exploring court reform. But determining what any reform should look like will require significant further work and consultation.

With Sajid Javid’s move to the Home Office, it is unknown whether the new Secretary of State, James Brokenshire, will share the same commitment to exploring the case for a specialist housing court. But regardless of how this work develops, one thing that will remain essential in any future court system is Legal Aid.

In the complex world of housing law, access to free legal advice is vital for helping people to prevent and resolve housing issues. Right now too few people can access this advice – but we hope the MoJ’s review of Legal Aid reforms (due to be completed later this year) can remedy this.

[1] YouGov, 1137 private landlords, online, July-Aug 2017

[2] MoJ Possession statistics for October – December 2017 show that the average time from claim to repossession for all types of cases is 42 weeks.

[3] In its latest statistics for January-March 2018, the MoJ has introduced median values, as they provide a more appropriate measure of average timeliness for comparisons over time. The mean average is particularly skewed by long outstanding cases.