Under pressure: Mediation pilot is no silver bullet to solve housing case backlog

A housing mediation pilot to ease the case backlog is risky for tenants who will feel pressurised, lawyers have warned.

Housing secretary Robert Jenrick announced the pilot at the start of February to help landlords and renters who will shortly face court proceedings and potential eviction.

However, the Society’s president David Green said the mediation pilot must not replace the usual routes to access justice; it must be “approached with caution”; and be more explicit about how it intends to help the public achieve justice. 

He added: “Mediation has an important place in dispute resolution, however housing is such an essential life requirement that mediation cannot replace the usual routes of access to justice through the courts or take money from schemes that facilitate that access… Vulnerable and unrepresented tenants may feel pressured to undertake mediation and may be misrepresented, as mediators are not housing dispute specialists.”

He said the Society was particularly concerned that the pilot could impact the sustainability of legal aid, particularly the housing possession court duty scheme (HPCDS), which provides an emergency solicitor on the day to anyone facing eviction proceedings. 

“The £3m allocated to the pilot would be more usefully channelled into the HPCDS and early legal advice”, Green said. 

However, the much called for investment has not materialised

“Mediation should not be seen as the whole solution to the current court delays and backlogs”, said Greene. “Any remedy to these issues must focus on ensuring all tenants have access to courts, court services and specialist legal advice.”

Diane Astin, housing solicitor at Deighton Pierce Glynn, acknowledged that though mediation has its place, early advice for tenants is “what would most help to reduce the backlog, and to prevent claims being issued in the first place”

She pointed out that most possession claims in the social sector are based on rent arrears. “Early advice to help tenants with issues such as benefits, debt, employment, and family breakdown is what is needed to avoid the rent arrears accruing in the first place", she said.

Astin added: "These underlying problems are going to be all the more acute during the pandemic. While the issues are different in the private sector, where tenants do not have security of tenure, it is still the case that rent arrears will be the main reason for a landlord seeking possession.

"So again, early advice and assistance with benefits and debt would be most effective to avoid claims for possession being commenced.”

She said the money allocated to the pilot would have been better spent on early legal advice and assisting firms and agencies who participate in the HPCDS schemes.

“Those schemes depend on highly specialist advisers and solicitors working for law centre and legal aid firms”, added Astin. “They are well-equipped to assist with the underlying issues but are hampered by the fact that legal aid is now so restricted.”

Some participating law centres employ 'crisis navigators' who help tenants resolve the underlying issues when a possession claim is adjourned. 

“If the Ministry of Justice really wanted to help tenants to avoid eviction”, she added, “funding such posts would be an excellent way to do that.” 

Astin also expressed surprise that the government in running a pilot during “a time of unprecedented chaos”.

She commented: “The courts are not operating as normal; possession claims are usually face-to-face hearings with block listing. And now the courts are dealing with a gigantic backlog. 

“I cannot see how an accurate evaluation of the role of mediation in possession claims can be achieved given that the pilot will be operating during an unprecedented crisis in our courts.”

Astin agreed with the Law Society’s concerns that tenants could feel pressurised to reach agreements which may not be in their best interests.

“Tenants often make unrealistic offers regarding the repayment of rent arrears because they are facing eviction”, she observed.

“The specialists who staff the housing duty advice schemes can advise tenants realistically and have knowledge of both housing law and the way the benefits system operates.  The mediators will not be specialists in housing law.  

“Many tenants have strong defences to the claims for possession but are completely unaware of this until meeting a duty adviser at court.”

She warned of a real risk that under the mediation pilot, tenants “will be encouraged to compromise and to agree to give up possession” despite having a strong defence to the claim.