The question of housing litigation: Reflections on feedback from the Masterclasses

I am very much in reflective mode today (perhaps it’s the naproxen for my current ailment).  But, I have been thinking about some of the feedback from the masterclasses, which was all very fair by the way.  There were some lovely comments but there were also some comments that I was a little unfair in some of my remarks.  I take that on the chin, of course, and this blog is a reflection on my part, and a rolling back on some of the things that I have been thinking.

Without quoting directly, here is a potted version of some of the qualitative comments which I have taken away from your evaluations:

• We need more housing lawyers and it was a bit unfair to suggest that those who are currently in the trade are not doing enough. Much work takes place “behind the scenes” which persuades provides/authorities to change their decisions
• We should be people focused, and we sometimes let our enthusiasm for the law overcome that focus.
• Local authorities look to avoid costly litigation and so concede homelessness reviews

The first thing I do want to say is that I am mortified if I gave the impression that housing lawyers should be working harder.  That could not be further from the truth.  I think that you do an amazing job and I am very aware how hard you work, and how we (if I include myself here) find it really hard to switch off.  We need to avoid burnout, not work harder.

On the other points, settling cases is clearly proportionate and in the client’s best interests.  Local authorities have limited resources available to them for litigation, so settlement is in their interests too.  I get that.  We shouldn’t spend money on litigation if we can avoid it, particularly when the cost of an appeal could be as much as providing rent for a household for a year.

On the one hand … I have no great faith in litigation myself, and there are really interesting questions about the impact of litigation which my long-time collaborator, Simon Halliday, was working in the 2000s.  Simon came up with the idea of “legal conscientiousness” among bureaucratic decision-makers as a factor in decision-making.  We know – or, better, think we know – that the review process is better placed to enable advisors and local authorities to reflect on what went right/wrong, and change practices as necessary. So engaging in that process can change things for other applicants.

On the other … if we don’t have an authoritative judgment on the meaning of the law, or miss giving key procedural protections to vulnerable people, we run the risk of not doing things or making decisions as policy-makers intended.  There is an implementation gap, and that is a bad thing.  Further, the kind of approach we have at the moment in Wales lacks transparency, and may favour those who get to speak to the knowledgeable advisor.  So, people may be losing out on their rights.  And when I say “people”, we are talking here about the most vulnerable people.

Do we need litigation?  I confess to being less clear than I was before.  What worries me a little is that we end up with the kind of test litigation that was the case in Beacon, which was manufactured and ultimately produced the desired outcome; or we end up with the satellite litigation like in Kensington Mortgage.  Both are important but perhaps they don’t get to the heart of the issues raised by the legislation because of the way in which they emerge.

Anyway, after the masterclasses, I received a kind invitation to shadow a participant for a few days.  Thank you to them, and I will definitely take them up on it when I feel better, as that will inform my views.

[Last thing: it’s a “big” birthday this month, so I may blog a little bit more irregularly, but hopefully will maintain a weekly offering.]