New research has found that the personal circumstances of defendants in home possession cases are often not disclosed to judges.
Yet judges who were interviewed by the researchers said that knowing about personal circumstances – such as problems caused by age, mental infirmity, dependent children, and an inability to understand the proceedings – could have a major bearing on their judgement.
The research also reveals that defendants who participate in the possession process or who have access to legal advice are more likely to have favourable outcomes.
What influenced the orders made by judges in housing possession cases was one of the key questions in the report of more than 100 pages by Professor Susan Bright of Oxford's Faculty of Law and Dr Lisa Whitehouse of the University of Hull.
They also found that when defendants were represented in court they were less likely to be evicted. However, the researchers' survey revealed that more than half of defendants failed to attend the court hearing in home possession cases. The report says there are currently no official statistics on the attendance rates of defendants in such cases.
The researchers analysed Ministry of Justice data and conducted interviews with decision-makers involved in housing possession cases, carrying out surveys in late 2012 to early 2013 involving representatives of Housing Possession Court Duty Schemes (HPCDS) in England and County Court Delivery Managers in England and Wales. They also interviewed district judges and mortgage lenders.
One of the key concerns for landlords and lenders was how to handle arrears cases concerning individuals with mental health issues. Mortgage lenders in particular said mental health issues had often cropped up in cases where individuals had failed to keep up their payments.
Professor Bright said: 'It is crucial that people threatened with eviction participate in the legal process or, at the very least, that information relating to their circumstances is fed into it. At the moment, there is a lack of "joined up thinking" in the process. Court forms are currently only concerned with a defendant's financial affairs, and while homeowners or tenants may have spoken at length to their landlord or lender about their circumstances, it is unlikely that such information will be relayed to the court.'
The survey of housing advisers found a range of reasons why defendants did not attend hearings. They said defendants were trying to 'bury their heads in the sand' or 'saw little point in it as nothing could be done', or that landlords and housing officers had told defendants there was no need to attend. Another reason was that defendants had a fear or misunderstanding of the legal system.
The study says the average time allocated to court hearings in mortgage and social rent cases is five to six minutes, remarking that if attendance rates did increase there would be a further strain on court resources.
The researchers suggest improvements could include a review of court forms, which are read by the judges, so that they include information about a defendant's personal circumstances alongside existing information about a defendant's financial affairs. They suggest that a less formal process for dealing with repossession cases may also improve attendance rates while reducing demands on the judiciary and other court resources.
The study adds that although the pre-action protocols for possession claims (which lay out the rules that the court expects of the landlord or lender) have had a beneficial impact on the possession process, some claimants fail to comply with the spirit of the protocols, leading to them sometimes being little more than a box-ticking exercise. It says protocols could be used to reduce the burden currently placed on court resources by requiring lenders and landlords to produce evidence of compliance.