(b) With the documents, the tenant will be sent a form to complete. He/she will be asked if he/she agrees with the level of arrears and the suggested instalment figure for repayment. The form will include a warning that if the tenant does not respond within a specified number of days, then an order will be made on the basis of the landlord's figure. There will be a space for tenants to give details of their financial circumstances, even if the tenant is in agreement with the arrears figure and the suggested instalment figure. The tenant will be encouraged to complete this section, even though the landlord will have given details of the tenant's circumstances on the claim form so far as these are known to him. The form will also encourage the tenant to obtain advice from an advice agency such as a CAB.

(c) The district judge then checks all the documentation, and makes an order (either for what the landlord has suggested or what he/she thinks fit) without there being a hearing.

(d) On the tenant's initial reply form there should also be space for the tenant to indicate if there is a defence to the claim for arrears, or a counterclaim, eg, for disrepair, and brief details. If the district judge considers there is a prima facie defence or counterclaim, then a preliminary hearing will be fixed.

(e) The order will be sent to both parties. It will include a warning to the tenant that if he/she breaches the order, then his/her home is at risk and the claim can be restored. Failure to comply with an order will increase the risk of a possession order being made. The order will also tell the tenant that if his/her financial or other circumstances change so that he/she would like the order changed then he/she must tick a box on an enclosed form and send it back to the court. The order could be varied without a hearing, if sufficient information had been provided.

(f) If the tenant breaches the terms of the order, the landlord applies for a hearing.

(g) The notice of the hearing to the tenant would make clear that it would be in a private room.

26.    The success of the new system will depend, in the first instance, on the effectiveness of the paper procedure for recovery of arrears. The arrears order will need to include a strong warning to the tenant about the increased possibility of possession if the order is breached.

27.    Secondly, there needs to be a concerted effort to encourage the attendance of defendants at court. In cases where breach of an order does lead to a hearing for possession, the importance of defendants' attending must be acknowledged by all concerned. Claimants, as well as the courts, must play a part in urging defendants to attend.

28.    Whether or not the tenant is present, reasonableness under Section 85 Housing Act 1985, must be fully considered by the judge before a possession order is made. Suspended possession orders would still be used, albeit more rarely. If the proposed procedure has been followed, many of the matters likely to be taken into account in considering reasonableness will already have been identified, and evidence on them may already have been given, at the earlier stages. A suspended possession order would therefore carry a far more serious threat of repossession if breached than at present (and this should be made clear to the tenant). Therefore, applications to set aside warrants would be more difficult and less likely to be successful, unless there had been a change in circumstances since the suspended possession order was made.

29.    I do not think it would be appropriate for a two-stage procedure to be compulsory in all cases, although landlords should be encouraged to use it. A landlord would be entitled to ask for a full hearing of his possession claim immediately, but he would have to satisfy the court at the hearing that it was reasonable to have done so, and might be subject to a costs sanction if the court did not agree. The procedure has been developed mainly with social landlords in mind, and it has been suggested that it will be less attractive to private landlords because they are more likely to want immediate possession. There is, however, no reason why private landlords should not use the two-stage process in cases where they are more concerned to recover rent arrears than to repossess the property.

Mortgage arrears
30.    It would be difficult to apply the proposed two-stage procedure to mortgage possession proceedings, because of the lender's right to possession where he can prove arrears and the limited discretion of the court to delay possession under the terms of the Administration of Justice Acts. The hearing can, in any event, serve a more useful purpose in mortgage than in rent cases, and I would not wish to recommend any radical changes to the existing procedure. However, the points I have made about access to advice, and the importance of defendants' attendance at court, apply equally in mortgage as in rent cases.

The accelerated possession procedure
31.    My issues paper invited comments on the working of the accelerated, papers-only possession procedure which was introduced in November 1993. This applies only to assured shorthold tenancies under the Housing Act 1988, and to certain other types of assured tenancy where there is no security of tenure beyond a fixed date or where the landlord has a mandatory ground for possession under the Act.

32.    Some respondents, including the Law Society and a number of practitioners' groups, have indicated that the procedure is not successful because the statutory requirements and the forms are too complicated. Consequently, landlords often do not fill in the forms correctly, and this results in the need for a hearing in any event.

33.    The point has also been made that, in fairness to defendants, in cases where there is no hearing there should at least be a nominal date for the court's consideration of the case, so that the parties know when to expect a decision.

34.    I understand that the Department of the Environment, in consultation with the Court Service, has commissioned research by the London Research Centre into the effectiveness of the accelerated possession procedure in reducing the time and cost involved in possession proceedings. The researchers are due to report in September 1996. A further stage in the research will then be considered, which would look at the feasibility of widening the scope of the procedure to cover grounds for possession which are currently excluded. I recommend that the need for reform of the procedure should be considered in the light of the responses to my consultation paper, and of the results of the DoE's research.

Chambers or open court?
35.    Elsewhere in this report, in the context of case management, I have discussed the possibility of a conflict between the principle of open justice and the need for privacy when matters of a personal or commercially sensitive nature are being discussed. Similar issues arise in relation to possession proceedings, where there is currently a distinction between mortgage cases, which are heard in chambers, and rent cases, which are heard in open court.

36.    Those who have responded to my consultation paper are virtually unanimous in the view that the current distinction between rent and mortgage actions is indefensible, and that all hearings involving discussion of a party's financial affairs should be held in private. There are, however, arguments for not excluding the public altogether. A rigidly enforced rule would exclude advice workers and others, including potential litigants, with a legitimate reason for wanting to observe a hearing. There is also the point that private hearings do not encourage consistency of judicial decision making. Finally, there may be a public interest in a judge's comments on, for example, the general practice of a particular mortgage lender or public sector landlord.

37.    On balance, I believe the best approach is for all possession proceedings to take place in the informal surroundings of chambers. There should be no overall ban on public attendance, but either party should be able to apply for members of the public to be excluded.

Anti-social behaviour
38.    It has been brought to my attention in the course of the Inquiry that serious problems arise in cases where possession is sought on grounds of harassment or nuisance amounting to serious anti-social or criminal behaviour. I have heard, both from local authority officers and direct from tenants, of the serious harassment undergone by residents who complain about the behaviour of an anti-social minority. Harassment can take the form of verbal abuse, threats of violence, drug dealing and even actual physical violence. Tenants who regard themselves as innocent victims are sometimes forced to move, and this exacerbates the problems because an estate can quickly become a ghetto.

39.    There are two main criticisms of the way in which actions for possession on the grounds of serious harassment or nuisance are currently dealt with by the court system. The first is that cases take far too long, sometimes even years, to reach a final hearing. The second problem is that witnesses may be reluctant to give evidence of harassment or nuisance through fear of intimidation.

40.    I am particularly disturbed by reports that the courts do not recognise the special significance of these cases, and consequently fail to treat them with the appropriate degree of urgency. There is no reason in principle why this could not be dealt with locally by administrative arrangements, but in the light of the apparent inconsistencies it is clear that some more authoritative central guidance is needed. In my view, this problem also underlines the need for a degree of specialisation by judges with training and experience in housing cases. I recommend that specialist housing judges should regard it as part of their duty to visit local council estates and hold structured discussions with tenants' representatives to give them a better understanding of the problems faced by litigants in this area. I am grateful to the local authority associations who have offered their help in arranging such visits and discussions.

41.    In the context of the current campaign by the Local Authority Working Group on Anti-Social Behaviour, a number of measures are already being taken to combat anti-social behaviour by tenants. The Housing Bill, which is currently before Parliament, gives social landlords, and private landlords of properties occupied by secure and assured tenants, a new right to start possession proceedings as soon as a notice for possession has been issued, where there is nuisance or annoyance to neighbours. It extends the ground of nuisance or annoyance to include behaviour likely to cause nuisance; this ground applies to behaviour in the locality of the tenant's property, and includes behaviour by visitors to the property. The extended ground will make it possible for landlords to rely on 'professional' witnesses such as council officials or police officers to prove conduct which is 'likely' to cause nuisance. Residents who have been victims of such conduct may not need to be involved to the same extent.

42.    Conviction for an arrestable offence in the locality of the tenant's property will now also form grounds for eviction. In addition, the Bill provides a power of arrest for breach of injunctions against anti-social behaviour by tenants of social landlords and others, where violence has occurred or is threatened.

43.    In addition to these new measures, the government has recently issued guidance for local authorities on how to get the best out of the court system in cases involving nuisance neighbours. The points covered include:

(a) applying for injunctions for the protection of people or property before or during possession proceedings;

(b) requesting an expedited hearing, or a shortened timetable between issue and hearing;

(c) applying for non-molestation orders for witnesses or non-disclosure of their addresses; and

(d) providing information on court procedures to witnesses, and arranging for them to use a separate waiting area in court from the defendants.

44.    I am hopeful that the new powers in the Housing Bill, coupled with the guidance on court procedures, will provide considerable assistance to public sector landlords in their efforts to combat this problem. In my consultation paper I asked whether there were, in addition, any other procedural steps that could be taken, to address in particular the specific problems of delay and witness intimidation.

45.    Respondents who addressed the point did not always think it necessary to introduce a special new procedure for these cases; many thought the essential point was to ensure an appropriate degree of expedition. In particular, it was hoped that the introduction of a two-stage procedure for recovery of arrears would in itself create a new order of priority, enabling cases where possession is genuinely sought to be handled faster.

46.    I have concluded that some modifications to the standard possession procedure are appropriate, including an element of case management, for claims by local authorities, housing action trusts, charitable housing trusts or registered social landlords within the meaning of the current Housing Bill, where it is alleged that:

(a) a tenant, or a person for whom the tenant is responsible under the terms of his tenancy agreement, has assaulted another resident or a member of the landlord's staff; or

(b) a tenant or a person for whom the tenant is responsible under the terms of his tenancy agreement has threatened to assault such a person; or

(c) there are reasonable grounds for fearing such an assault; or

(d) a tenant or a person for whom the tenant is responsible under the terms of his tenancy agreement has caused serious damage or threatened to cause serious damage to another resident's home or property.

47.    The claim in such a case should be accompanied by:

(a) An affidavit of a housing officer or person in a similar capacity, proving the facts within his/her own knowledge and exhibiting statements which have been signed by witnesses in accordance with the rules. If the housing officer has reasonable grounds for fearing a repetition of the violence, threats or damage, or that witnesses may be intimidated, the names, addresses and signatures of the witnesses may be omitted. The housing officer must state the grounds for his/her fear.

(b) A copy of the tenancy agreement.

(c) A statement of rent, current arrears and entitlement to housing benefit.

(d) A copy notice seeking possession.

(e) (If sought) a claim for an ex parte injunction restraining continuance of the nuisance, interference with witnesses or potential witnesses, and any other breach of the tenancy agreement, until 7 days after the pre-trial review.

48.    An application for an injunction should be heard forthwith by a judge, who should take into account the effect of failure to grant an injunction on neighbours, potential witnesses and staff of the claimant landlord. The claim for possession, claim for an injunction, and injunction should be served personally by the landlord. The court should fix a pre-trial review not less than 10 days and not more than 15 days from the issue of proceedings.

49.    At the pre-trial review, if the defendant does not attend, and the court is satisfied as to the ground for possession and as to reasonableness, possession may be ordered on production of signed statements. Alternatively, the court may give directions for:

(a) defence;

(b) disclosure of signed witness statements;

(c) (in exceptional circumstances) continued anonymity until the trial;

(d) protection of witnesses, for example by the use of screens or video evidence;

(e) trial and expedition of the trial; and/or

(f) continuation of the injunction.

50.    The target date for the trial should be within 10-13 weeks of issue of proceedings. I consider this a realistic maximum, given the need for both sides to prepare their case. As one of the tenants at the Manchester meeting pointed out, a 'fast track' system is open to abuse, and rights must not be removed. Provided that is borne in mind, however, there is no reason why the overall timetable could not be even shorter in cases of particular urgency.

51.    I see very serious difficulty in guaranteeing the anonymity of witnesses beyond the pre-trial review, as has been suggested by local authorities and tenants' associations. They would like vulnerable witnesses to be interviewed in private by a neutral third party (perhaps a district judge or solicitor acting for the court, or a police officer or housing officer) who could give evidence on behalf of the anonymous witness. New rules on hearsay, under the Civil Evidence Act 1995, will make this approach easier, but it must be doubtful how much weight could be given to such evidence. In particular, it would be essential to ensure that the defendant had a proper opportunity to be heard, and to challenge evidence against him or her. In any event, the 'anonymous' witness would probably still be readily identifiable in the majority of cases.

52.    There are a number of practical steps which can be taken to reassure and protect vulnerable witnesses when they attend court, such as the use of screens or video evidence, and the provision of separate waiting areas. In some cases it might also be appropriate for witnesses to be cross-examined by the defendant's legal representative in the absence of the defendant. In addition to this, I believe that prospective witnesses may be more ready to come forward if they have the assurance that an expedited procedure will produce a swift conclusion to the case.

Disrepair
53.    Landlords and tenants have a common interest in maintaining housing stock in good condition. Local authority landlords have a duty to maintain their property in good repair and eradicate poor housing, and tenants have a right of access to the courts to enforce their landlords' obligations to carry out repairs. Where there is a written tenancy agreement, this may set out the mutual rights and obligations of landlords and tenants. All those who have contributed to this part of my Inquiry, both landlords and tenants, would agree in principle that court action should be treated as a last resort.

54.    Sadly, the reality is that problems and disputes over disrepair do arise all too frequently, and landlords and tenants view the situation from very different perspectives. Tenants who have recourse to litigation, and their representatives, say that this is sometimes the only effective way of getting repairs carried out, and to obtain appropriate compensation. Landlords point to overstretched resources as the underlying reason for any failure to carry out their obligations. They say that tenants who resort to litigation are effectively jumping the queue, which results in an unfair distribution of limited resources among the body of tenants as a whole. They claim that court orders often oblige them to carry out repairs which they do not regard as urgent or necessary, because surveyors who inspect and report on premises on behalf of tenants often find additional items of disrepair which the tenant did not previously know about.

55.    The use of legal aid in disrepair actions is another point of contention. Landlords suggest that solicitors drum up business by leafleting estates, and that tenants who are eligible for legal aid gain an unfair advantage over others who cannot afford to litigate privately. From my perspective, the main cause for concern is the expenditure on both sides of public funds which could be put to better use. Local authorities understandably dislike paying legal costs from their housing budgets, which in turn limits the amount available to be spent on repairs. As an example, I am told that one major local authority, deplorably, has to spend 20 per cent of its response repairs and maintenance budget on litigation. The remedy against 'drumming up business' is in part in the landlords' hands. If they had clear and understandable programmes, tenants would not turn so readily to lawyers for help.

56.    It would be naive to suggest that reform of court procedures could have more than a very limited impact on problems of this kind on the scale that exists around the country. I do not, in any event, want to encourage unnecessary litigation, in this area or any other. Where court action is unavoidable, however, the procedures should be as simple, quick and inexpensive as possible. The majority of disrepair actions under the new system are likely to be dealt with either as small claims or as fast track cases. (Detailed procedures for the fast track are set out in chapter 3 of this report.) This should reduce cost and delay, and provide wider access to the courts for tenants who do not qualify for legal aid.

57.    It is important that tenants who are contemplating litigation are properly informed about alternative means of obtaining redress. One existing alternative for local authority tenants is provided by the 1994 Right to Repair Regulations, which provide strict timetables for the completion of specified repairs upon notice to the landlord by the tenant. It appears, however, that this option is not widely used because of its limited scope and the low level of compensation available. The Local Government Ombudsman, whose work I describe in more detail below, also deals with a significant volume of complaints about disrepair. Information about these options, and any others such as local mediation schemes, should be provided by county courts, solicitors, law centres and any other agencies dealing with enquiries about housing matters.

58.    Above all, tenants should not be advised to start legal proceedings, or pursue a complaint about disrepair through any outside agency, until they have reported the disrepair to their landlord through the normal channels and allowed a reasonable time for the landlord to respond.

59.    I believe that unnecessary litigation might be avoided, and repairs carried out more speedily, if landlords' and tenants' representatives could agree a pre-action protocol which sets out a clear procedure to be followed by both sides, and which would be enforceable by the courts in the event of breach. Early in the second stage of my Inquiry I had separate meetings with the Housing Law Practitioners' Association and with the public sector landlords' bodies, following which each side drew up its own version of a possible protocol. Subsequently, under the aegis of the working group which I then set up, the two sides have held a number of meetings in an attempt to agree a joint protocol. I have also had useful representations from the Law Society and the Bar Council. I agree with the Bar Council that it is desirable for a protocol to be incorporated into tenancy agreements.

60.    While the proposals for a protocol have been developed mainly with social landlords in mind, I believe it is right in principle that they should also apply to landlords and tenants in the private rented sector. Primary legislation would be required to import the terms of a protocol into private tenancy agreements, but in the meantime compliance should be encouraged as a matter of good practice.

61.    I am very encouraged by the progress made by the Housing Law Practitioners' Association and the landlords' associations. Subject to two points which I discuss below, they have reached broad agreement that the protocol should provide for:

(a) landlords to identify and advertise a clear procedure for tenants to follow in reporting disrepair;

(b) tenants to report disrepair in accordance with the procedure prescribed by the landlord;

(c) landlords to issue receipts for reports of disrepair, and, within a specified time, either carry out the necessary work or give a reasoned response to the tenant's request. (This could, for example, explain why the landlord disagreed with the tenant's request, or propose a date on which the repairs would be carried out); and

(d) a list of approved experts to be established by each local authority, in consultation with representative bodies for tenants and lawyers dealing with housing issues in their local area.

62.    If the landlord's response was not satisfactory, or if the repair had not been carried out in accordance with proposals, the tenant could ask for an expert to inspect and report on the premises at the landlord's expense. The landlord would select the appropriate expert from the locally agreed list. It is suggested that the landlord would instruct the expert within 14 days, and that the expert would then have 14 days within which to inspect and report.

63.    The next stage would be that the landlord would have 21 days to reply to the expert's report, indicating what work was to be carried out and by what date. The reply could also, in appropriate cases, include an offer of compensation to the tenant.

64.    If the tenant remained dissatisfied with the landlord's proposals, or with the compensation offered, or if the work was not carried out satisfactorily, the tenant could start court proceedings. The case would be allocated either to the small claims jurisdiction or to the fast track in accordance with its value and complexity.

65.    This approach has a number of significant advantages. First, a clear system for reporting disrepair and acknowledging such reports will reduce the scope for disputes as to what was reported when, and encourage landlords to deal with reports of disrepair systematically. Secondly, a straightforward procedure with standard 'tick box' forms will make it possible for tenants to reach at least the stage of applying for an expert inspection without legal assistance. Thirdly, the period of 14 days within which the expert is required to carry out an inspection will give the landlord an opportunity, in appropriate cases, to reconsider its initial decision and agree to carry out the repair.

66.    If a protocol along these lines were to be generally adopted and properly followed, the result should be that court proceedings would be issued in only a minority of cases. In cases that did go to court all the necessary documentation, including an expert's report, should be readily available, and that should significantly reduce the length and cost of proceedings.

67.    The first point of disagreement between the landlords and the Housing Law Practitioners' Association is on the issue of receipts for reports of disrepair (paragraph 6 above). The Association believes that receipts should be issued for all reports of disrepair, while the landlords would prefer not to issue receipts where they do not consider they are liable for the repair, for example because it is the tenant's responsibility.

68.    If the landlords' approach is accepted, the protocol will be effective only in cases where the landlord accepts legal liability for the repair. That in itself would be a significant step forward, but I think it would be preferable for landlords to acknowledge all reports of disrepair, giving written reasons where they do not accept liability for the repair. This could be done by using a pre-printed form with tick boxes, and need not be unduly onerous. The important point, in my view, is that tenants would be given proper information about the status of their claim, and that any future disputes about the reporting of disrepair could be avoided.

69.    The second and more fundamental disagreement relates to the instruction of experts. The landlords insist that the expert's report should be restricted to the particular disrepair which is the subject of the tenant's complaint. The only exception they would allow is the inclusion of any additional disrepair which is actually causing a danger to the tenants or a potential injury to their health.

70.    In my view it would not be realistic to expect a surveyor's report to ignore additional problems except those he considers dangerous. All disrepair will need to be dealt with in due course, and should be identified as early as possible. It does need to be made clear, however, that the court would not necessarily include any additional repairs in an order for specific performance, unless reasonable time had been allowed for the repairs to be done.

71.    First of all, it is up to the tenant to decide whether he or she wants to make a claim in respect of additional repairs identified by the surveyor. In some cases, no doubt, the tenant will choose to concentrate on a major item of disrepair which is causing serious inconvenience. When a claim does include several items of disrepair, it is open to the landlord to identify those which are regarded as urgent and to put forward a timetable for carrying out both urgent and non-urgent repairs. The civil courts have a discretion as to whether or not to make a mandatory order requiring a landlord to carry out repairs. When the landlord can demonstrate that relatively minor repairs are to be carried out as part of a planned programme, the court should take that into account in the exercise of its discretion, for example by adjourning the question of a mandatory order pending implementation of the landlord's repair programme. It would be helpful if this position could be clarified in the rules. (Different considerations would apply in cases brought under the Environmental Protection Act 1990 in the magistrates' courts, which have a more limited discretion than the civil courts.)

72.    There will clearly need to be further discussion on the protocol after this report is published. Now that I have indicated my views I very much hope the landlords will accept my approach. I do not suggest, as a matter of general policy, that protocols should be imposed on parties to litigation, but where there is substantial agreement on both sides it may be appropriate for the court to help the parties to come to an appropriate solution on any outstanding points of difficulty by adopting its preferred solution. Once a protocol is established, it should be included in a practice guide on housing cases. If the protocol set out in the practice guide is not complied with by the parties, this should be reflected in the court's approach to costs and discretionary relief.

Judicial review
73.    At present the only way of challenging local authorities' decisions in cases involving homelessness is by way of application to the High Court for judicial review. There is also a growing tendency for judicial review to be used in other housing disputes, for example by tenants seeking transfer or owners seeking house renovation grants, or in disputes about housing benefit. It is questionable whether judicial review, which is primarily concerned with issues of wider public interest, is the appropriate procedure for these cases. There are also practical difficulties: the process is a relatively lengthy and expensive one, and is perceived as inaccessible by many of the people involved because applications for judicial review can only be made in London.

74.    The Law Commission's report on judicial review (LAW COM. No 226) agreed that there should be a simpler procedure for homelessness appeals, but expressed the view that an internal review procedure could not be regarded as a substitute for a right of appeal to an independent court or tribunal. The Commission therefore recommended that judicial review in homelessness cases should be replaced by a right of appeal either to an independent tribunal or to a county court. (The report pointed out that the county court had the advantage of being locally based and that it already dealt with other housing matters.) In response to this, the government has sought to improve the standard of local authorities' decision making on homelessness, and thus reduce the volume of applications for judicial review in this area, by requiring each authority to establish a formal internal appeal mechanism. The new Housing Bill provides a right to request a review of an authority's decision.

75.    My issues paper on housing asked whether it should be possible for housing cases which are dealt with by way of judicial review to be heard outside London, and whether there should be a new right of appeal to an independent tribunal or a county court. Respondents were strongly in favour of a more localised system for homelessness appeals, not only because of the inconvenience for many people of travelling to London, but because the issues would be more appropriately considered by adjudicators with knowledge of local conditions. It was thought that the county courts would provide the most appropriate forum, and that these cases should be heard by specialist Circuit judges who had had the opportunity to build up some expertise on housing matters.

76.    There was also a strong, though not unanimous, view that any new county court procedure for homelessness should continue to provide an appeal on points of law only, not on the facts, because it would be inappropriate for the courts to overturn the administrative decisions of local authorities. I agree that this approach is most in keeping with the new arrangements for internal review by local authorities, and I therefore recommend that there should be a new route of appeal to the county courts, on judicial review principles, against local authorities' decisions on homelessness.

Multi-party actions
77.    In the context of housing litigation, common issues of law and fact may arise when large numbers of cases are brought by:

(a) tenants of the same public or social landlord all experiencing the same problem, eg, of disrepair; or

(b) people affected by a decision of a public body (who under the existing arrangements might apply for judicial review); or

(c) long leaseholders of the same landlord with a common problem, such as the appointment of receivers.

78.    At present, however, the scope for representing collective rather than individual interests in the courts is unclear, because of the courts' restrictive interpretation of the rules on representative procedures. As a result, most lawyers involved in housing tend to deal with individual claims without addressing the wider issues. This means that individual cases cost more than necessary, and costs for the courts and legal aid are increased because effective action can be achieved only through litigation on a case by case basis.

79.    I have dealt at some length with multi-party actions in chapter 17 of this report. The procedures I have proposed there should be applicable, in a simplified form, to housing cases, which are likely to be more straightforward and involve smaller numbers of claimants than many other multi-party actions. In the case of housing, there is no reason why multi-party actions should not be managed and tried at county court level.

80.    There is a particular need in the housing field for the existing rules on the standing of organisations to bring representative actions to be clarified and made less restrictive. Attempts to address broad policy questions on housing by way of judicial review are sometimes frustrated because there is no applicant to bring the point before the court, or because the potential respondent has settled individual claims on a case by case basis. That situation need not arise if a representative organisation could apply to the court for declaratory relief. The new rules should make provision for this.

Ombudsmen
81.    At present both the Commissioner for Local Administration (the Local Government Ombudsman) and the Housing Association Tenants' Ombudsman (HATO) provide an alternative to the courts in many types of housing dispute, including disrepair and homelessness, and some types of multi-party action.

82.    The Local Government Ombudsman was established to deal with injustice arising from maladministration. The legislation specifies that the Ombudsman is not to investigate cases where a remedy is available in a court of law, but there is a discretion to accept complaints where it is not reasonable to expect the complainant to resort to a legal remedy. In practice, that discretion is widely exercised. Housing complaints make up 37 per cent of the Local Government Ombudsman's cases, and 10 per cent of the overall caseload is disrepair.

83.    The average cost to the public purse of a disrepair case handled by the Local Government Ombudsman, in the financial year 1995-96, was £445, although the cost of a case involving a full investigation could be as much as £3,000. The normal time to achieve a settlement and get repairs done is about 24 weeks, but the overall timescale is nearer 18 months in the minority of cases where a report is issued.

84.    The HATO was established in 1993, and is paid for and supported by the Housing Corporation. The Ombudsman currently deals with about 20 complaints a week. The Housing Bill provides for the establishment of statutory Ombudsman schemes which will replace the HATO.

85.    The Ombudsman system has a number of advantages in housing cases. It is cheaper than the courts, and there is no charge to the complainant. The process of investigating complaints is informal, flexible and non-confrontational. Unlike the courts, the Ombudsman can recommend changes to a landlord's practice in general. The Local Government Ombudsman has developed a procedure for grouping systemic complaints, such as the handling of housing benefit by a single London borough.

86.    The HATO's terms of reference do not permit group actions as such, so that he can only proceed by way of a test case. His determinations are, however, taken as applying to other cases, and the regulatory role of the Housing Corporation is a powerful means of securing compliance with recommendations on systemic failure. The way in which the new statutory schemes will operate is not yet known, but I hope they will have effective powers to deal with complaints involving groups of tenants. Both the Local Government Ombudsman and the HATO can have a powerful influence on future practice through the publication of annual reports and reports of their formal inquiries. The new statutory schemes will have similar powers.

87.    The main disadvantages of the Ombudsman system, as compared to the courts, are lack of enforcement powers and lower compensation. Some users of the system also complain that it takes too long, and some have also pointed to a lack of expertise and specialisation among the Local Government Ombudsman's staff in certain parts of the country.

88.    I recommended in my interim report that the discretion of the public ombudsmen to investigate issues involving maladministration which could be raised before the courts should be extended. It appears that the Local Government Ombudsman's discretion in relation to housing cases is, in practice, already being exercised in the way I had in mind. It would, nevertheless, be helpful if this could be put on a formal basis, to underline the importance of the Ombudsman's role as an alternative to litigation.

89.    I also recommended that the relationship between Ombudsmen and the courts should be broadened, enabling issues to be referred by the Ombudsman to the courts and the courts to the Ombudsman with the consent of those involved. In the housing context, in particular, it has been suggested to me that it would be helpful if the Ombudsman could refer points of law (including questions of statutory interpretation) to the courts, and if compensation recommended by the Ombudsman were enforceable through the courts.

Other forms of ADR
90.    There is a limited but important role for other forms of alternative dispute resolution in housing cases. Mediation, in particular, is widely recognised as being the most effective way of resolving many disputes between neighbours, although it is clearly not appropriate in cases of serious nuisance or anti-social behaviour. A minority of local authorities already provide mediation services, and it would be helpful if these could be extended.

Recommendations
My main recommendations are as follows.

(1) Judges should be encouraged to specialise in housing cases, and more training should be provided to ensure that they are aware of the special problems in this area.

(2) The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form.

(3) All claims for repossession of domestic property, including actions for the eviction of squatters, should start in the local county court. It should be possible for cases to be listed before a High Court judge only if there are exceptional circumstances which make this necessary.

(4) There should be a new, two-stage possession procedure for arrears of rent cases. The first stage would be a paper procedure leading to a court order for the repayment of arrears. Failure to comply with its terms would lead to a second stage involving a hearing, which could then result in an order for possession.

(5) The need to reform the accelerated possession procedure for assured shorthold tenancies should be considered in the light of the responses to the Inquiry, and of the results of research by the Department of the Environment.

(6) All hearings involving discussion of a party's financial affairs should be held in private. The best approach is for all possession proceedings to take place in the informal surroundings of chambers. There should be no overall ban on public attendance, but either party should be able to apply for members of the public to be excluded.

(7) There should be an expedited possession procedure, including an element of case management and a target date for trial within 10-13 weeks, for claims by local authorities and registered social landlords within the meaning of the current Housing Bill, where it is alleged that there has been violence or harassment.

(8) County courts, solicitors, law centres and any other agencies dealing with enquiries about housing matters should provide information to potential claimants about the 1994 Right to Repair Regulations, the Local Government Ombudsman, and any other options such as local mediation schemes.

(9) There should be a pre-action protocol for housing disrepair cases including:

(a) a clear procedure for tenants to report disrepair;

(b) an obligation on landlords to issue receipts for reports of disrepair; and

(c) provision for inspection of the property by a single expert chosen from an agreed list.

If the agreed protocol, or the protocol set out in the practice guide, is not complied with by the parties, this should be reflected in the court's approach to costs and discretionary relief.

(10) There should be a new route of appeal to the county courts, on judicial review principles, against local authorities' decisions on homelessness.

(11) The existing rules on the standing of organisations to bring representative actions in the housing field should be clarified and made less restrictive.

(12) The discretion of the public Ombudsmen to investigate issues involving maladministration which could be raised before the courts should be put on a formal basis. The Ombudsman should be able to refer points of law (including questions of statutory interpretation) to the courts, and compensation recommended by the Ombudsman should be enforceable through the courts.