5. Option 3: Housing Panel Replacing Courts As Decision Maker
5.1 The third option set out in the consultation document proposes the creation of a Housing Panel to replace courts as the main decision maker in certain housing dispute cases. This type of panel would be a tribunal. This would involve transferring jurisdiction for specific types of housing dispute cases from the courts. A Housing Panel could also make the same kind of binding orders as a court, including the power to end tenancies and evict tenants.
5.2 The consultation document makes clear that option 3 is not necessarily mutually exclusive from option 1 (promoting use of early preventative action and mediation) or option 2 (creating a pre-court Housing Panel). As is discussed in previous sections of this report, those in support of preventative action and mediation saw these as preferred options irrespective of any form of Housing Panel that may be implemented. However, consultation responses suggest that those in favour of some form of Housing Panel generally see options 2 and 3 as alternatives, rather than as potentially complementary.
Question 7: Should there be a new housing tribunal, to be called the Housing Panel?
5.3 Question 7 asked respondents to consider whether there is a case for creation of a Housing Panel to replace the courts as the main decision maker for housing dispute cases. Table 9 below summarises responses.
|Table 9: Question 7 - Response by Respondent Type|
|Respondent Type||Yes||No||Don't know/ mixed||N/A||Total|
|Registered Social Landlords||17||4||1||-||22|
|Tenant and resident groups||9||6||2||1||18|
|Campaign and third sector orgs||5||4||2||4||15|
|Legal firms or representative groups||2||4||1||-||7|
|Lettings agents, private landlords & groups||2||5||-||-||7|
|Housing representative agencies and bodies||3||1||-||-||4|
|Other representative agencies and bodies||3||-||1||1||5|
5.4 The majority of respondents to this question (58 out of 105) were in favour of the creation of a Housing Panel to replace the courts as the main decision maker for housing disputes. This represents half of the respondents to the consultation as a whole.
5.5 While those in favour of option 3 included responses from all respondent types, there was some variation in the balance of views across these categories. The majority of RSLs, local authorities, housing representative agencies and other representative agencies were in favour of this option. In contrast, the majority of legal firms/representative groups, lettings agents/private landlords and individual respondents were opposed.
5.6 Comments added in relation to respondents' support of option 3 included reference to a range of anticipated benefits, many of which were included in the rationale set out in the consultation document:
- Ensuring required housing specialism is brought to the dispute resolution system, resulting in better and more consistent decision making.
- A more accessible, inquisitorial approach with a greater emphasis on problem-solving, and with a less circumscribed role for lay representation.
- Ensuring appropriate prioritising of housing dispute cases.
- Reducing delays and costs in dealing with dispute cases.
- Mitigating the potential impact of any potential reduction in legal aid by promoting access to justice in housing dispute cases.
5.7 As was evident in relation to option 2, those opposed to a Housing Panel to replace courts as a decision maker were broadly in support of the intended outcomes of the Panel. However, respondents identified a number of considerations which in their view undermine the case for a Housing Panel being the best way of achieving these outcomes:
- Some respondents expressed significant concerns about proposals to deal with an individual's tenancy status outwith the court system. Indeed, some of those in support of option 3 noted that placing all rented housing disputes under the jurisdiction of a Housing Panel "is a decision that should not be taken lightly" (Crisis).
"[Option 3] would fundamentally alter the careful balance of rights and responsibilities in tenancy law to give greater power to landlords while weakening the position of tenants." - Homeless Action Scotland
- Shortcomings of the current dispute resolution system will be better resolved through court reforms; at the very least, time is required to assess the extent to which court reform will deliver required improvements before a decision is taken to introduce any form of Housing Panel.
- There may be a case for extending pre-court requirements to private landlords, and for an increased focus on prevention and mediation work - however this does not require a new Housing Panel which would only add further bureaucratic stages to the dispute resolution process.
- An effective Panel would require the resources and power of the court, and resources would be better spent ensuring that court reforms are properly implemented, rather than "recreating a court by another name" (Turcan Connell). This included reference to significant resources being required for the creation and ongoing administration of a new Panel.
- Existing tribunal models suggest that a Housing Panel is unlikely to be free of delays and increasing costs. It is noted that the volume of cases handled by the prhp represents a very small proportion of all housing cases, while Employment Tribunals (which do handle a significant volume of cases) are often subject to considerable delays in considering cases.
5.8 A range of respondents - including those opposed to and those in support of option 3 - suggested that significant further work is required to specify how a Housing Panel would be established, detailed procedures for its operation (including routes for referral), and how it will be resourced (including fee structures). These details are highly relevant to any judgement of whether a Panel would deliver the required improvements in dispute resolution.
Q7a: Who should be members of this type of Housing Panel?
5.9 In relation to members of a Housing Panel to replace the courts, responses were very similar to those in relation to a pre-court Housing Panel (see Q6d).
5.10 The core suggestion for Panel membership was for 3-5 members, including a legal professional, housing professional and layperson with suitable housing-related experience. This included reference to the composition of other tribunals, including the Children's' Panel specifically. It was also suggested that the broad range of cases to be considered by the Panel may require representation of other qualifications or fields - as standing members, or the facility to draw on other qualified individuals as required by specific cases.
5.11 The following specific points were made in relation to Housing Panel membership:
- Legal professionals will be required, and may be the most appropriate chair for the Housing Panel. Legal members will be particularly important in the context of the ability to evict tenants.
- Trained and qualified housing professionals will be required to ensure that a Housing Panel improves the quality and consistency of decisions on housing disputes. There may be benefit in specifying a minimum period of relevant experience for these members. Specific areas of housing experience included practice experience of tenancy management, working with those in acute housing need, housing advice, debt advice or support services for tenants, and residential property expertise (e.g. solicitors).
- Laypersons with suitable, demonstrable experience of housing services.
- Experienced representative or advocate from the voluntary sector, including reference to Citizens' Advice, Tenant Participation Advisory Services and/or Registered Tenant Organisation representation.
- Qualified professionals with experience of working in a related field who may be able to bring a wider perspective to housing dispute cases - for example social care, community regeneration, academics or researchers.
- Members with the experience and knowledge required to consider the equality impact of cases and Panel decisions.
- Panel composition should recognise the very different contexts for private and social rented sector dispute cases, and have access to a sufficient breadth of knowledge on specific aspects of legislation or services - such as repair and property condition/building standards, antisocial behaviour, health, mental health, money advice/welfare.
- Procedures will be required to ensure that there is no conflict of interest for Panel members in relation to each case being heard.
- For the Panel to function effectively, significant training and resources are likely to be required to ensure members have the necessary skills and knowledge to take on the role. A robust training programme will also be required to ensure the required consistency in decision making, as will appropriate monitoring arrangements.
Q7b: Should the Housing Panel be created by expanding the caseload of the Private Rented Housing Panel?
5.12 Table 10 below summarises respondent views on whether a Housing Panel should be created by expanding the caseload of the prhp.
|Table 10: Question 7b - Response by Respondent Type|
|Respondent Type||Yes||No||Don't know||N/A||Total|
|Registered Social Landlords||6||6||5||5||22|
|Tenant and resident groups||2||8||1||7||18|
|Campaign and third sector orgs||1||2||-||12||15|
|Legal firms or representative groups||2||-||1||4||7|
|Lettings agents, private landlords & groups||2||-||-||5||7|
|Housing representative agencies and bodies||-||3||-||1||4|
|Other representative agencies and bodies||1||-||1||3||5|
5.13 Views were divided on whether a Housing Panel should be created by expanding the caseload of the prhp; 25 of the 65 responding to the question were in favour of this proposal, while 26 were opposed. This was the case across most respondent groups, although the majority of housing representative agencies and tenant and resident groups answering the question were opposed to this option.
5.14 A minority of respondents added comments in support of their response to question 7b, with the following points being made:
- The prhp could incorporate the role of the new Housing Panel, given some similarities in purpose and approach. However, the development of a separate fit for purpose Panel would bring greater benefit. In practice the volume of casework to be considered by a new Panel would be likely to overwhelm the prhp in its current form.
- A new Panel would not be consistent with the prhp and hohp (homeowner housing panel) which were established to act in the interests of the consumer, and which do not charge a fee for access. The new Panel must be established to work for all parties equally.
- Care is required to ensure that however the dispute resolution system is arranged, housing disputes are dealt with in a consistent and streamlined way - this may be best managed by a single body incorporating the prhp.
- The argument for extending the remit of the prhp into a single Housing Panel for all sectors may now be appropriate. This approach may bring benefits in enabling the Panel to deal with disputes between social landlords and other owners, and between landlords and their tenants. Significant expansion of current prhp structures would be required, potentially using a "group Panel approach" (Glasgow City Council) with specialist committees to deal with specific types of disputes and/or tenures.
Q7c: Which housing cases should a new Housing Panel consider?
5.15 In terms of the housing dispute cases which should be considered by a Housing Panel, a number of respondents suggested that all civil cases that would normally be referred to the court should fall within the remit of a Panel. This included some suggestion that this should also include all cases which are currently referred to the prhp and hohp, in the context of a need for the dispute resolution process to be as simple as possible for all parties - "a simplified system that provides a clear and accessible route to housing justice" (Home Scotland). In particular, some suggested that having different procedures for different aspects of housing legislation could lead to confusion, potentially undermining the aim of improving tenant engagement in the dispute resolution process.
5.16 Other respondents suggested a more specific, circumscribed remit. The following cases were highlighted as being appropriate for a new Panel:
- Rent arrears cases, where a less adversarial approach is better suited. The more inquisitorial approach may help to address tenant difficulties in making their case in arrears cases, and may also be more conducive to taking household financial management into account (often the crucial element of arrears cases).
- Appeals against landlord decisions such as abandoned tenancies (in terms of section 18 & 20), succession, assignation, sub-letting, mutual exchange, granting a Scottish Short Secure Tenancy, and grounds covered by Schedule 2 of the Housing (Scotland) Act 2001, as amended. However, it will be important for a Panel to ensure that landlords' appeals processes have been exhausted in these cases.
- Failure of a landlord to comply with legal obligation.
- Disrepair disputes.
- Social rented sector disputes over legal rights where there is currently no established enforcement procedure, such as homelessness decisions, refusal of access to a housing register, failure to consult, standards of repair, access for inspection/repair.
- Antisocial behaviour cases. Some suggested that this should include eviction, interdict and ASBOs, although as is discussed at paragraph 5.18, the inclusion of such cases within the Panel's remit was not universally supported.
- Disputes concerning landlord registration, failure to provide a Tenant Information Pack and licensing of Houses in Multiple Occupancy (HMO) are broadly similar, and could be referred to a Housing Panel. Blanket exclusion of criminal cases from a Panel's remit would also exclude issues relating to landlord registration, etc and this issue requires further consideration.
- Failure to protect a deposit.
- Appeals against local authority use of private sector housing legislation.
- Applications to the Sheriff in terms of the Tenement (Scotland) Act 2004.
- Right to Buy appeals.
- Shared ownership arrears.
- Factoring and common repair disputes were suggested, although factoring disputes are currently considered by a tribunal.
- Housing disputes where there is an obligation to refer to Independent Arbitration - for example Section 5 referrals, Shared Ownership Occupancy Agreements.
- Consideration should be given to the feasibility of extending a Housing Panel's remit beyond disputes between tenants and landlords, to include, for example, repossession actions by mortgage lenders.
5.17 Notwithstanding these comments, some respondents urged caution in ensuring that a Panel is not faced with an unmanageable caseload from too broad a range of cases. In this regard it was noted that the current prhp caseload represents a very small proportion of all housing cases. Moreover, if the full range of potential cases were to be placed within a Panel's remit it is likely that caseload would increase over time as the number of cases involving landlord's decisions (currently relatively rare) may increase if a Panel is easier to access than courts.
5.18 In light of the potentially significant caseload burden, consideration should be given to phasing in specific types of case over time, potentially including use of issue or area-based pilots. This could allow testing of Panel composition and procedures, and go some way to allaying concerns about moving a large volume of housing dispute cases to an untested system.
5.19 Responses to question 7c also included suggested exclusions from a Housing Panel's remit:
- Eviction cases involving antisocial behaviour are typically adversarial in nature, involving conflicts of evidence which would be better addressed in a court setting. It was also suggested that cases which may involve the issue of an ASBO would not be appropriately considered by a Panel, as breach of such orders is a criminal offence.
- Eviction cases involving grounds other than rent arrears or antisocial behaviour are so rare that there is potential for unusual legal considerations to be involved, and as such are better handled in court.
- Summary Sheriff courts would be a more appropriate mechanism to handle enforcement legislation cases, such as HMO licensing, serious rent arrears and antisocial behaviour. Comments here included support for the establishment of a more specialist summary Sheriff court to deal exclusively with these housing disputes.
Q7d: Should parties be charged a fee for raising actions before a new Housing Panel?
5.20 Question 7d asked respondents to consider whether a charge should be levied on parties for raising actions before a new Housing Panel. Responses are summarised at Table 11 below.
|Table 11: Question 7d - Response by Respondent Type|
|Respondent Type||Yes||No||Don't know||N/A||Total|
|Registered Social Landlords||9||5||2||6||22|
|Tenant and resident groups||5||5||-||8||18|
|Campaign and third sector orgs||1||2||-||12||15|
|Legal firms or representative groups||3||-||1||3||7|
|Lettings agents, private landlords & groups||2||-||-||5||7|
|Housing representative agencies and bodies||1||1||1||1||4|
|Other representative agencies and bodies||-||1||-||4||5|
5.21 Views were divided on the issue of fee charging for a new Housing Panel. Nearly half of respondents (27 out of the 60 that answered this question) felt that one or more parties should be charged a fee for raising actions before a Panel. However, there remained 20 of 60 responses who were opposed to fee charging. This mix of views was evident across all respondent groups.
5.22 A small number of respondents added further comments in support of their response to question 7d. This included a number of comments on the principle of fee charging, with these respondents suggesting that this is likely to be an essential element of an effectively resourced and sustainable Panel. However, respondents also urged caution in determining fee structures to ensure that a Panel is accessible to people on low incomes - for example through minimal fees for tenants, and/or a subsidy system.
Q7e. What do you see as the main difficulties and challenges in establishing a Housing Panel?
5.23 Question 7e asked respondents to identify the main difficulties and challenges for the establishment of a Housing Panel. The consultation question was focused on those who had indicated opposition to a Housing Panel, but in practice the full range of respondents raised a range of issues. This included reference to the considerable challenge of delivering a more streamlined dispute resolution system with better, more consistent and speedier decision making. Respondents broadly in favour of option 3 identified the following challenges and points for clarification:
- There are questions to be addressed in relation to the structure and operation of a Housing Panel that will be crucial to its success or otherwise. This includes whether regional Housing Panels will be the most appropriate approach, and if so how a panel will handle administration and resourcing of multiple committees, while ensuring consistency in decision making. There may be lessons to learn here from the experience of the prhp.
- Ensuring that the composition and operation of a Housing Panel will provide the required consistency and quality of decision making.
- Ensuring a Housing Panel can secure and retain an appropriate calibre of expert members, and associated questions of the need for - and feasibility of funding - competitive remuneration for panel members.
- Clarity is required on how a Housing Panel will be resourced and funded. This included specific reference to the potentially large Housing Panel caseload, the requirement for a potentially significant number of qualified persons to sit on or contribute to a panel, and the need to ensure that any fee structure is not prohibitive to tenants seeking to raise action against tenants.
- The challenge of ensuring all parties engage effectively with a Housing Panel, and particularly ensuring accessibility of a Housing Panel for individuals. This included reference to physical accessibility if a panel is to hear cases from across Scotland, and the need to ensure that a panel provides an environment in which tenants feel able to engage with the dispute resolution process.
- The anticipated reduction in the use of legal representation in housing dispute cases is likely to place further pressure on landlords' resources in terms of staff training, preparation and attendance at hearings.
5.24 Those opposed to or undecided on option 3 also highlighted significant challenges facing a Housing Panel, and in particular the risk of a Housing Panel failing to deliver the intended improvements in housing dispute resolution.
5.25 Specific challenges and concerns raised by those opposed to or undecided on option 3 were:
- There are serious questions as to how a Housing Panel will be resourced in the context of a potentially very significant increase in caseload (as compared to current prhp cases), while ensuring that fee structures will not act as a barrier to individuals bringing cases. Some raised this issue in the context that the cost of establishing and sustaining a Housing Panel would be an unnecessary one as proposed court reforms should deliver many of the intended outcomes. Moreover, it was suggested that the cost of the court is unlikely to decrease proportionate to the decrease in volume of cases being handled, as some fixed costs will remain.
- Accessibility of a Housing Panel for all parties requires consideration, and may be reduced if it is unable to sit as regularly and as locally as the current court system. The geographical structure of a Housing Panel in particular was highlighted as a potential concern.
- A Housing Panel would require sufficient powers to ensure it is not simply an additional stage on the route to court action, and thus further delay the dispute resolution process.
- There will be challenges in striking the right balance between a more informal approach to dispute resolution than is currently the case within courts, and the need for robust procedures required to establish the truth behind housing disputes and ensure correct decisions are taken. This is a particular concern in the context of a Housing Panel potentially having to handle some cases involving very serious issues where a more informal approach is not appropriate.
- There is a risk that a Housing Panel will deliver inconsistent decisions, unless sufficiently detailed and robust procedures are in place.
- Some raised concerns that tenants and others may not view a Housing Panel as a sufficient deterrent, but rather as an interim step towards court action. This is likely to undermine the effectiveness of a Housing Panel in terms of securing resolution to housing disputes.
- The issue of a Housing Panel potentially dealing with ASBOs - the breach of which is a criminal offence - is not addressed by the consultation paper and requires consideration. There is also a risk that the wider experience of courts in dealing with ASBOs and the interface between the civil and criminal legislation will be lost if a Housing Panel handles these cases.
- Clarity is required on how a Housing Panel would interact with primary legislation, particularly in the context of overlap between housing legislation and other issues such as antisocial behaviour legislation.
Q7f: If no to question 7, do you think improvements to the dispute resolution system would be better delivered through proposals for civil court reform as outlined in paragraphs 4.5 to 4.9?
5.26 Finally in relation to option 3, respondents were asked to consider whether proposed civil court reforms would be a better means of improving the dispute resolution system. Table 12 below summarises responses.
|Table 12: Question 7f - Response by Respondent Type|
|Respondent Type||Yes||No||Don't know||N/A||Total|
|Registered Social Landlords||4||3||1||14||22|
|Tenant and resident groups||2||3||13||18|
|Campaign and third sector orgs||6||1||-||8||15|
|Legal firms or representative groups||3||3||1||-||7|
|Lettings agents, private landlords & groups||3||1||1||2||7|
|Housing representative agencies and bodies||1||-||-||3||4|
|Other representative agencies and bodies||1||-||1||3||5|
5.27 Around half of respondents (27 out of the 55 that answered this question) felt that required improvements in the dispute resolution system would be better delivered through proposed court reforms. This profile was broadly consistent across respondent types, although this view was somewhat more common amongst Campaign and third sector organisations answering this question.
5.28 A small number of respondents added further comments in support of their answer at question 7f (the consultation form did not provide space for written comments at this question). These comments showed considerable overlap with the issues raised in relation to a pre-court Housing Panel (at question 6i):
- Proposed court reforms would produce a system much closer to the notion of housing-only civil courts, but there remains the risk of courts having to prioritise hearings within a mixed caseload, and in particular continuation of the situation where housing cases are deemed to be less urgent than non-housing cases.
- While more specialist decision makers within Sheriff courts would be welcome in the handling of housing disputes, a separate Housing Panel comprising experts with relevant skills and experience appears to be better suited to the objectives of ensuring speedier, better and more consistent decisions.
- A separate summary Sheriff court arrangement specialising only in housing cases - potentially including criminal cases - would be preferable to current proposed court reforms. Moreover, this may be better placed to enable 'fast-tracking' of arrears cases.
Summary of Key Issues on a Housing Panel to Replace Courts as Decision Maker
Half of respondents to the consultation were in favour of the creation of a Housing Panel to replace the courts as the main decision maker for housing disputes. This included a large majority of RSLs, local authorities, housing representative agencies and other representative agencies. In contrast, the majority of legal firms/representative groups, letting agents & private landlords and individual respondents were opposed to this option.
Those opposed to a Housing Panel to replace courts as a decision maker were broadly in support of the intended outcomes of a Panel. However, respondents identified a number of issues which, in their view, undermine the case for a Housing Panel being the best way of achieving these outcomes. This included significant concerns about proposals to deal with an individual's tenancy status outwith the court system, the significant resource requirements to establish a new Housing Panel, and a need to allow civil court reforms to complete prior to making a decision on the introduction of a Housing Panel.
The core suggestion for Panel membership was for 3-5 members, including a legal professional, housing professional and lay person with suitable housing-related experience. It was also suggested that the broad range of cases to be considered by a Panel may require representation of other qualifications or fields - as standing Panel members, or the facility to draw in other qualified individuals as required by specific cases.
Views were divided on whether a Housing Panel should be created by expanding the caseload of the prhp. This was the case across most respondent groups, although the majority of housing representative agencies and local authorities answering the question were opposed to this option.
There was some suggestion that all civil cases that would normally be referred to the court should fall within the remit of a Panel. However, most respondents suggested a Panel's remit should be focused on specific types of dispute such as housing debts and antisocial behaviour, potentially taking into account whether mediation has failed or where tenants' needs may be better met via a less formal inquisitorial approach.
Views were divided on the issue of fee charging for a new Housing Panel. Nearly half of respondents (27 out of the 60 that answered this question) felt that one or more parties should be charged a fee for raising actions before a Panel. However, 20 of those 60 responses were opposed to fee charging. This mix of views was evident across all respondent groups.
A quarter of consultation respondents felt that required improvements in the dispute resolution system would be better delivered through proposed court reforms. This profile of views was broadly consistent across respondent types.
Email: Paul Sloan