The government is formally consulting on the creation of a new specialist housing court which would be able to deal with both landlord and tenant issues.

Housing disputes are currently heard in several different courts including the County Court, First-Tier Property Tribunal, High Court and the Magistrates Court. For example claims in relation to possession or homelessness are dealt with in the County Court, service charge disputes generally in the First Tier Tribunal and prosecutions under the Environmental Protection Act 1990 in the Magistrates Court. 

However the creation of a specialist housing court would create a single way to pursue a claim.

The government has argued that the complexity of the existing legal process for housing disputes can deter tenants from making a claim. This is because the current system can be expensive and time consuming for tenants and landlords alike.

James Brokenshire, the Housing Secretary, said: "This is particularly important for families and vulnerable tenants who live with the fear of suddenly being forced to move, or fear of eviction if they complain about problems with their home".

Landlord pressure groups have also argued that the complexity of the current system makes it difficult to remove tenants from their properties and this is one reason why landlords are reluctant to offer longer term tenancies in the private rented sector.

David Smith, Policy Director for the Residential Landlords Association, said: "It will help root out criminal landlords more quickly, give tenants better ability to enforce rights granted by new legislation on property fitness, and give greater confidence to landlords to offer longer tenancies".

The four main options given in the consultation paper are:

  • establishing a new, specialist housing court
  • making structural changes to the existing courts and property tribunals by moving certain specialist housing cases into the tribunal system
  • making changes to the enforcement process in the county court so there is more information advising claimants of what they need to do to complete the process
  • no changes to the present system but strengthen guidance given to help users navigate the court and tribunal process and understand their rights and responsibilities

However one of the main concerns, raised by tenants groups and lawyers, is the availability of legal aid for such cases which will impact on access to justice. Legal aid is presently available for tenants for possession, harassment, illegal eviction, homelessness and some disrepair matters. However there is no legal aid for tribunal matters and therefore if housing matters are now to be heard in the tribunal, then there will be no legal aid available for tenants in the new "housing court" for such cases.

Further, for tenants or landlords who are not eligible for legal aid, the First Tier Tribunal is a "no cost" regime (save for limited exceptional circumstances). Unless there is a fundamental change in this approach to costs, a tenant or landlord with a strong and meritorious case, which succeeds, will end up having to finance it themselves. This could deter many from seeking justice.

There is also the issue as to whether the First Tier Property Tribunal would have sufficient capacity to deal with the additional number of housing cases that a specialist housing court would entail as landlords and tenants are already experiencing long delays for certain cases to be dealt with, especially with enforcement of possession orders.

There is also the issue of access to the venue, a particular difficulty for tenants with disabilities, as there are far fewer tribunals than County Courts.

Details of the consultation, considering the case for a housing court: call for evidence can be found at www.gov.uk and closes on 22 January 2019.