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Can mediation solve the housing possessions backlog?

The freeze on possession hearings is finally starting to thaw – but how will the courts cope with the huge backlog of cases? Will mediation, online hearings, or a dedicated housing tribunal make a difference? In the first of a series of articles from 42BR Housing, looking at the potential solutions, Catherine Urquhart analyses the mediation pilot scheme.

The ban on enforcing action against residential tenants ended on 31 May 2021, meaning landlords who have brought possession claims can now start to have them enforced, once court approval is given for bailiffs to take action.

But the courts already faced a vast backlog of possession claims before the pandemic. This was exacerbated during lockdown, when most possession actions were stayed, and this summer is likely to see a further wave of claims as landlords finally feel able to take action against tenants who can no longer pay their rent.

Experts agree that the problem is vast, but frustratingly it is largely unquantifiable. A report from the House of Lords’ Select Committee on the Constitution entitled ‘Covid-19 and the Courts’ in March 2021 found this:

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“There is no official number of outstanding housing possession claims. James Sandbach [Director of Policy and External Affairs at Law Works], said that the stay on eviction proceedings had caused a “massive backlog” that was a “significant” cause for concern: “all the tenancy problems and disputes that might have developed during lockdown could lead to a tsunami of cases once the stay has lifted”. From October to December 2020, the median average time from claim to landlord repossession increased to 43 weeks, up from 21 weeks in the same period in 2019.”

The committee urged the Government to look at alternatives to litigation to help reduce the number of housing repossession cases waiting to be heard in the county court.

One possible alternative, which launched in February 2021, is the ‘Rental Mediation Service’, a £3m government-funded pilot in England and Wales. It is a free-to-use service for landlords and tenants who would otherwise lock horns at a court hearing in front of a judge.

This scheme uses the opportunity of the new ‘review’ stage of housing possession proceedings, itself introduced to help streamline court hearings during the pandemic. At the review stage, if the case is considered suitable and both parties agree, the claim can be referred to mediation. At the review, the tenant can obtain free legal advice from the Housing Possession Court Duty Scheme (HPCDS), which provides vital emergency advice to tenants on the day of a court hearing.

The mediation should take place within ten days of the referral, handled by a mediator from the Society of Mediators. It takes place by telephone. If it succeeds, the signed agreement goes in front of a judge for approval and it can be enforced in court if either party breaks its terms. If it fails, the case continues on its path to a final hearing and the judge at that hearing is not told about the unsuccessful mediation.

The mediation process is likely to be less confrontational than a final court hearing, as the parties speak separately to the mediator and do not meet, even virtually.

But again, frustratingly for housing law practitioners, evidence as to the scheme’s success is hard to come by, even anecdotally. The experience of employment law practitioners at 42 Bedford Row suggests that mediation often works – judicial mediations of employment cases have a good success rate – but the key to their success is that both parties realise that they must be prepared to compromise to some extent. In a housing possession case, is compromise likely, when one party faces losing their home and the other party faces losing an often substantial part of their income? Is there sufficient middle ground to reach a compromise?

Unsurprisingly, commentators have been quick to pick holes in the scheme. For example, there are concerns that members of the Society of Mediators are not necessarily housing experts – and it is a complex, technical area of law where both sides should ideally be represented by specialist housing lawyers. Another concern, raised by Law Society President David Greene, is that the pilot may divert precious government funds from the already squeezed legal aid budget which supports the HPCDS.

And practically speaking, both parties need email access to arrange the mediation, and some parties may not be confident to deal with such an important matter by telephone, meaning the scheme will not be suitable for all.

The pilot scheme is due to run for six months, so it is to be hoped that later this summer the Government will report back on its success – and whether it will continue.

Several other alternatives to the current system have been suggested, such as a dedicated housing/property court to help speed through the backlog, or increased use of Nightingale courts or online hearings.

Scotland and Wales have come up with sticking-plaster solutions. Last October, the Senedd introduced low-interest Tenancy Saver Loans which provide tenants with easily repayable loans that are paid directly to the landlord. And last May, the Scottish Government introduced the Private Rent Sector Landlord Covid-19 Loan Scheme to give loans to landlords whose tenants were struggling. But there is so far no indication that such schemes will be introduced in England, or indeed any hard evidence that they can help tenants weather the Covid-induced storm in the long-term.

Catherine Urquhart is a barrister at 42 Bedford Row.

Members of 42 Bedford Row’s housing team will be looking at some of these solutions in future articles. Meanwhile landlords or tenants needing help with housing matters can contact our clerking team here.

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