Improving procedural fairness in housing possession cases

This article offers an insight into the context and practice of housing possession hearings in which a social landlord seeks a possession order against a tenant who is in rent arrears. Drawing on the findings of the authors’ empirical research, supplemented by insights from the psychology of decision-making, this article questions whether judges are able to exercise discretion in a manner consistent with the fundamental demands of ‘procedural fairness’. We find that while the legal process requires judges to engage in rational decision-making, and while judges believe that this is what they are doing, the reality is very different: judges are likely to be relying on intuition. It is not that judges eschew engaging in more deliberative decision-making but rather that they are constrained by limits of the human mind as well as the conditions under which they make their decisions. In particular, the practice of housing possession is characterised by information deficits, low levels of legal representation and time constraints, and this does not facilitate decision-making that meets accepted standards of fairness. In response, we propose ways in which to enhance the consistency, transparency and accountability of decision-making while recognising the current climate of reform and diminishing resources within the legal system.

This is a pre-copyedited, author-produced version of an article accepted for publication in Civil justice quarterly following peer review. The definitive published version, Whitehouse, Lisa, Bright, Susan and Dhami, Mandeep K. (2019) Improving procedural fairness in housing possession cases. C.J.Q. 2019, 38(3), 351-375 is available online on Westlaw UK (http://legalresearch.westlaw.co.uk/) or from Thomson Reuters DocDel service (http://www.sweetandmaxwell.co.uk/our-businesses/docdel.aspx)