Jonathan Hulley argues that First Tier Tribunal (Property Chamber) is the key to resolving the backlog of landlord and tenant cases in the County Court and speeding up access to justice.
Introduction
Most people understand that when a landlord wishes to regain possession of their property, there needs to be a fair balance between their rights and those of their tenants. However, should that result in the need to go to court to enforce those rights, landlords often face long and expensive delays.
Whilst the last Conservative government introduced legislation to end the so-called ‘no fault eviction’ rights that landlords have under section 21 Housing Act 1988 (the ‘1988 Act’), they intended to delay this coming into effect because they recognised a capacity problem in the courts system. The new Labour government is intent to press on with changing the law regardless, which will lead to increased pressure on the courts.
In this article, I argue that the First Tier Tribunal (Property Chamber) (the ‘FTT’) should be used in more landlord and tenant legal disputes, speeding up justice and relieving pressure on the County Court system.
The Renters’ Rights Bill
The Renters' Rights Bill had its third reading in the House of Commons on 14 January and is now undergoing scrutiny in the Lords. The Bill will become an Act of Parliament soon, bringing about some of the most substantial changes to landlord and tenant law since the 1988.
Many fear there will be unintended consequences such as fewer homes to rent, due to landlords withdrawing from the market, and higher rents for those who manage to secure accommodation.
But should landlords be concerned?
Yes, because these reforms give tenants more rights and security at the cost of landlords.
The most significant change is the abolition of the section 21 “no-fault” eviction process. Landlords will then only be able to gain possession for a limited number of reasons under existing housing legislation: for rent arrears, breaching other tenancy terms, causing damage to the landlord’s property, exhibiting antisocial behaviour or needing the property for personal use, redevelopment or sale.
It must be said that most residential tenancies are problem free. The tenant pays rent on time, looks after the property, and leaves by giving notice. However, a minority of tenancies go wrong for one reason or another, and landlords have no choice but to seek possession in the courts. The legal grounds for possession safeguard landlords against the many issues that can go wrong and assist landlords in successfully evicting a problem tenant.
Rightly, the primary concern for landlords has been the backlog of court cases, particularly in the County Court where the vast majority of landlord and tenant cases are heard, causing delays in landlords getting access to justice.
Housing Minister, Matthew Pennycook, has pledged that the Government will invest in additional court capacity to manage the expected increased demand once section 21 is banned – but his warm words are meaningless given that some cases are already taking over a year to be heard.
As the Association of Landlords recently pointed out, their primary concern remains the ability of the courts to deal with the increased workload that will come their way without section 21 evictions. They say that without court reform and improvement, the new system won’t work well and deliver fair access to justice.
Is the County Court system fit for purpose?
The County Courts are buckling under the strain of excessive caseloads.
The Law Society, the independent professional body for solicitors, recently published data showing an access to civil justice crisis for individuals, landlords and small businesses as the County Courts battle delays.
Some cases can take more than a year (54 weeks) to go to a hearing or trial. Analysis of the figures shows that the time it takes for some landlord-tenant disputes, to be heard has risen by 30 weeks since 2010, despite 2,000 fewer cases than 14 years ago. While for more complex, higher value cases, it now takes more than a year and a half (80 weeks) to reach trial.
These figures lay bare an emerging crisis at the heart of our civil justice system and undermine efficient and effective access to justice, a cornerstone Conservative principle.
A potential solution
So, what can be done?
Well, the answer may lie in expanding the FTT role to hear more, perhaps all, future landlord-tenant cases.
The FTT already provides landlords, tenants, and leaseholders with a means to resolve property-related disputes if other forms of alternative dispute resolution, such as mediation, have failed.
It is also a more user-friendly forum for members of the public and more cost-effective.
It hears disputes about various issues, mainly residential and tenancies, and land registration. These include the determination of rent levels, for example, what is a fair or market-rate rent increase, financial penalties under tenancy agreements, rent repayment orders and refusals of the right to buy a council home.
It can decide some cases without needing to be heard. These decisions are based on the weight of evidence presented in the application and are known as 'paper decisions'. A paper decision is usually reached within 6 weeks of the application being received, a much shorter time than the typical year-long wait for justice in the County Court.
If an oral hearing takes place, the FTT panel may ask questions, and each party can do so to the other as well. Once the hearing has concluded, a decision is usually reached within 6 weeks, again a much shorter time than the year-long wait for justice in the County Court.
As a Conservative, I believe in efficient and effective access to justice. Unfortunately, the County Court system is currently not effective enough.
The Renters Rights Bill represents a pivotal moment for landlord-tenant relations in England and Wales. But its objectives are bound to fail unless the inefficiencies within the County Court system are addressed. Expanding the role of the FTT offers a pragmatic pathway to achieving this goal, ensuring that justice is both timely and accessible.
As a senior housing lawyer with over 20 years’ experience on conducting housing litigation in the County Court and the FTT, I know from experience that the FTT can deliver efficient and cost-effective justice.
As has been said so many times in the past, justice delayed is justice denied. Shifting landlord and tenant disputes from an overburdened County Court system to the FTT will deliver more efficient justice to landlords and tenants alike.
Jonathan Hulley is an Executive Committee member of the Society of Conservative Lawyers. He is also a leading social housing lawyer and was the Conservative Parliamentary candidate in Twickenham in July 2024.
The Society of Conservative Lawyers, an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters and the views expressed in its publications are only those of their authors, and not necessarily held by all members of the Society or by the Conservative Party. The views expressed in this post are those of the authors alone, who take sole responsibility for all errors and omissions.