Dealing with possession claims – a day in my life as a duty solicitor
Posted on 5th October 2016
I act as one of the duty solicitors at the Clerkenwell and Shoreditch County Court and as a housing specialist I represent clients with possession claims who attend Court without the benefit of legal representation.
When I arrive at Court I meet with one of the Court clerks who are attending the list of hearings for that morning or afternoon. I will be given a list of the cases and start taking the names of clients who have requested to see the duty solicitor for that day.
The scheme is funded by legal aid and allows those who come to Court unrepresented to have representation. Mostly the list, with a few exceptions, is made up of possession claims brought by social landlords due to rent arrears.
I initially meet the client in a room allocated to me and take evidence and instruction in regards to their case. It is helpful if the clients bring relevant documentation related to the claim for possession. Often, however, this is not the case and I have to rely on their oral instructions to ascertain why the landlord has brought the possession claim and what action the client has taken to try to resolve the matter, if any.
The first step I need to take is to examine the pleadings. These are the Court documents which require checking by me to see whether the Claimant has complied with the necessary protocol. For example, that the notice served prior to the issuing of the claim is done correctly.
My most important question for each client is “why did they get into such arrears and what did they do to try and resolve it”.
There are usually many different reasons why a person gets into rent arrears. Often it can be because their benefits have stopped. This means that the housing benefit department stops paying the rent or reduces the amount which they are paying resulting in rent arrears. Often it is because somebody loses their job and therefore they simply cannot afford to pay the rent over a certain period resulting in rent arrears.
A judge will ascertain as much evidence as possible. Before I go in for the hearing I will try and speak to the representative of the Claimant – usually a housing officer or legal representative. I also try to ascertain exactly what sort of order they require. Most often this will take the form of either an adjournment on terms, a suspended possession order on terms or an outright possession order.
The best result is generally an adjournment on terms. This means that no order is granted, however, it is adjourned on terms that the client pays the rent plus a contribution to the arrears. The best result will of course be for the claim to be dismissed out completed. This rarely happens except when the claimant has erred in issuing the claim.
If both sides can agree terms then we need to go before the Court i.e. the judge, to ratify the terms. If we cannot agree then we are required to defend the case before the judge at a hearing.
One of the main things that a judge will look for in deciding whether to give a tenant another chance, either by adjourning the case or suspending a possession will be to what extent the tenant has tried to deal with the problem of arrears. This could be by getting in contact with the landlord, normally the housing association or the local authority, when they start getting into arrears. Possibly reaching agreement with the housing officer as to how they could try and pay the rent and make a contribution towards the rent arrears. Also in terms of their own income, whether they have been proactive in either seeking to sort out their benefits or in trying to find employment which can pay the rent.
If I have identified a more complex defence, for example a defence on public law grounds or a potential counterclaim for disrepair it may be possible to get the case adjourned for the case to be fully prepared.
The most common difficulty I find when taking instructions from clients is understanding the reason for how they got themselves into this situation. Often this is met with a shrug of the shoulders and being simply told they do not know, or, that nobody got in contact to tell them that housing benefit had stopped or, that they needed to do anything to try and remedy the situation. This sort of defence, if you can even call it that, weakens their case greatly in the eyes of the Court.
When looking at social housing tenants, judges are often sympathetic, particularly if they have children. However there is a huge demand for social housing and as everyone is aware, there simply is not enough to go around. There are very long waiting lists with families struggling to bid for properties. Therefore if a judge sees an individual who simply does not care or does not bother to try and maintain the rent account and make it their absolute priority then they tend to be less forgiving and are quite prepared to grant possession orders.
An increase in possession claims
One of the things that I have definitely seen over the last few years is a dramatic increase in the number of claims for possession. Often it is people who are in part time low paid work, or on zero hours contracts, who suddenly find themselves in rent arrears because of their low income and irregular monthly income. Even people who work hard and try very hard to pay their rent get into arrears simply because they do not have the security or the financial stability to maintain regular rent payments. There has also been a great increase in sanctioning of people on benefits. Often people who suffer from disability and mental health issues are sanctioned without good reason and without any consideration for that person’s needs. For example, demands that individuals make regular appointments can be very difficult to keep for those that are vulnerable, often leading to sanctions of their employment benefit or ESA being stopped. Although this can be quickly reinstated it has a knock on effect with housing benefit.
Once a person’s income is stopped, or is varied, housing benefit will cease until the benefit is reassessed. Unfortunately it takes a lot longer, often several months, for the reassessment to take place and for housing benefit payments to be reinstated. This has the effect of people racking up large amounts of rent arrears. Even people who are sanctioned unfairly for a very brief period of time will end up with their housing benefit being stopped for several months, which is enough to give rise to a claim for possession due to rent arrears.
It seems to me that the most vulnerable in our society and the most financially worse off are being persecuted the most. As local authorities are able to use private rented accommodation to house those entitled to social housing, this has led again to great instability for these individuals and families. Private assured shorthold tenancies do not give long term security. Landlords wish to increase the rent or get new tenants in on a regular basis. They are also a lot less sympathetic for somebody who, for example, finds themselves unemployed and this is resulting in many more possession claims being granted and people being made homeless.
One can only hope that the situation may change and that greater security can be given to those who need it. But we shall see.