Submissions from The Community Law Partnership
Introduction
Community Law Partnership is an award-winning progressive firm of Solicitors specialising in the law relating to Housing and Public Law. CLP incorporates the Travellers’ Advice Team, a ground-breaking nationwide 24 hour advice service for Gypsies and Travellers.
We agree with the recommendations in the report of the Bach Commission contained in their final report of September 2017.
We also agree with the Law Society report into LASPOA “Access Denied?” (June 2017).
We simply expand below on those areas that we have specific expertise in under the headings of Housing, Public Law and our specialist area concerning Gypsies and Travellers. These headings are not in any specific order of importance and, indeed, we would say that all of these issues are extremely important to our clients. What we say below is based on our vast experience in these areas of the law.
Disrepair
LASPOA 2012 removed funding for disrepair matters and resulting damages claims. A new criteria at Schedule 1, Part 1, Paragraph 35 was introduced providing that civil legal services could be provided to an individual in relation to the removal or reduction of a serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family where:
(a) the risk arises from a deficiency in the individual’s home,
(b) the individual’s home is rented or leased from another person, and
(c) the services are provided with a view to securing that the other person makes arrangements to remove or reduce the risk.
The legal work required to remove or reduce the risk of harm is pre-action correspondence and, in the vast majority of cases where that correspondence does not produce any result, the issue of a claim for specific performance of the landlord’s repairing obligations within which, in the most urgent cases, an application for interim relief by way of an order that the landlord completes repairs within a particular time frame may be obtained.
Ordinarily, such a claim would include a claim for damages for breach of repairing covenants. However, the damages claim is out of scope. This is a nonsense. In order to obtain an order for specific performance the tenant has to prove:
- That the defect arises from disrepair
- That the landlord has had notice of the disrepair
- That the landlord has failed to carry out repairs within a reasonable time.
The only extra factors in proving a damages claim are the length of time the landlord has had notice and the consequential loss to the client. Tenants are being denied the opportunity to claim damages, when, if that claim were in scope, the costs would rise very little. A great injustice is being done to tenants for little savings. In any event, disrepair damages claims when they were in scope cost the Legal Aid Fund very little, as in most cases costs were paid by the defaulting landlord. It also puts solicitors in the invidious position of not being able to provide the best service to their clients, as only part of their claim is within the scope of legal aid.
In theory the Provider is able to do the necessary work to carry on the damages claim at risk under a Conditional Fee Arrangement, but in practice insurance is not available at an affordable price for this sort of work.
When tenants are living in properties in disrepair, a complaint to the landlord often provokes the service of a s21 notice by the landlord. The recent legislation introduced to try to prevent “retaliatory evictions” is of little assistance in these cases. This is because a s21 notice is only invalid if it is served after the service, by a local authority, of a Notice requiring the landlord to carry out repairs. In the vast majority of cases the s21 notice is served on the tenant before this happens. A landlord can therefore evict troublesome tenants and install new ones without carrying out repairs. Without a change to the law, this situation will persist. If the landlord were to face a damages claim when s/he does not carry out repairs, this may incentivise landlords to carry out repairs in order to minimise damages payable by them.
In some cases disrepair is so bad that tenants are accepted as homeless by the local authority and rehoused. There is nothing to prevent the landlord from re-letting that property in its dreadful state. If tenants were able to bring damages claims they could be compensated, landlords would have an interest in carrying out repairs and the burden on local authority homeless teams would be reduced.
We consider that the relevant test under the previous legal aid regime (which was tightly controlled by the LSC) should be restored.
Possession Proceedings
Under LASPOA 2012 Schedule 1, Part 1, Paragraph 33, Civil Legal Services can be provided to an individual in relation to:-
(a) Court Orders for sale or possession of the individual’s home, or
(b) The eviction from the individual’s home of the individual or others.
Many possession proceedings commence because of rent arrears. Rent arrears can arise due to problems with Housing Benefit or Universal Credit payments (which problems may not be the fault of the tenant in question), because of debt issues and for a variety of other reasons. What is absolutely clear is that, if rent arrears problems are addressed at an early stage, then possession action can be avoided and this, in turn, can avoid other problems and related costs such as resulting homelessness, ill health, loss of job etc.
As was stated during the LASPOA Bill debates on many occasions, early intervention can avoid problems escalating and also avoid costs escalating. From our experience of many, many cases, this is clearly the case.
We support the reintroduction of early advice in housing problems. The reintroduction of legal help for benefits problems goes hand in hand with this. It is often an underlying benefit problem (e.g. eligibility) which is at the root of the problem.
We would add a caveat; we, and many others, would not be prepared to do the work we used to do under legal help under the old payment regime. It is not possible to do a proper job under the fixed fee scheme and survive. This is because almost all cases require more work than the fixed fee covers, but the vast majority of them do not hit the “escape fee” threshold. This leads to firms doing lots of work for which they are not paid. In the last year before LASPO we had over 700 matter starts in housing. In that year we did £50,000 worth of unpaid work under the scheme. When we opened in 1999 we were paid £65 per hour for work done in the county court. Had that risen in line with inflation we would now be being paid £78.76. Instead, we have had a pay cut and now receive £59.40. Margins are simply too tight to allow us to do the work for nothing, and we will not do it.
There is also a further consequence of LASPOA in connection with claims for possession where a defence and counterclaim has been pleaded due to the breach of the landlord’s repairing covenant. Where arrears are reduced to a negligible sum, landlords can discontinue possession claims leaving just the counterclaim running. The LAA’s interpretation is that unless the disrepair complained of meets the requirements of schedule 1, Part 1, Paragraph 35 of LASPOA, legal aid ceases to be available as the matter is out of scope. The solicitor has to file notice of discharge of legal aid and is removed from the Court record. This leaves vulnerable and impecunious households acting for themselves in court proceedings which they do not understand in a complex area of law, with qualified lawyers on the other side. This massive inequality of arms often leads vulnerable people to settle their claim at an undervalue rather than continue alone.
Welfare Rights
Apart from some availability of advice for (the very rare) Upper Tribunal cases, Legal Aid has been taken away from welfare benefits matters. From our very extensive experience, problems with welfare benefits payment almost inevitably lead to other problems including rent arrears. As we say above with regard to rent arrears, early intervention where there is a problem with welfare benefits may avoid the problem escalating and may avoid costs escalating. There is a linked problem in that, due to the LASPOA changes, many welfare rights workers have lost their jobs and there has been a consequent loss of a vast amount of knowledge and experience. This will make it very difficult to revive advice in this area, and support should be given to suppliers willing to do this complex work to train the next generation of welfare benefits lawyers.
Loss of Home and Trespassers
With regard to Schedule 1, Part 1, Paragraph 33, there is an exception from the heading of “Loss of Home” where the potential applicant for Legal Aid is a “trespasser”. Thousands of Gypsies and Travellers have to resort to unauthorised encampments simply due to the lack of authorised sites. It is accepted by many reports and accepted by the Government that this is the central problem in this area. However, because of the above exclusion, when County Court proceedings are issued against Gypsies and Travellers, they are unable to apply for Legal Aid to defend those proceedings if they believe the proceedings are being carried out in an unlawful way (e.g. failure to take account of serious welfare issues). Clearly it would be more sensible if the proceedings could be defended in the County Court but, instead, Gypsies and Travellers have to apply for Legal Aid for a Judicial Review. It can be extremely difficult to try and obtain Legal Aid for a Judicial Review or, in the alternative, those few providers who deal with Gypsy and Traveller issues have to spend inordinate amounts of time (sometimes time that will never be paid) trying to obtain Exceptional Cases Funding to defend the possession proceedings.
Judicial Review Regulations
Albeit that Judicial Review remains in scope under LASPOA Schedule 1, Part 1, Paragraph 19, subsequent regulations have meant that the fact that it is in scope may be irrelevant if Providers are not willing to take Judicial Review action. The Civil Legal Aid (Remuneration) (Amendment) Regulations 2015 mean that any Provider commencing a Judicial Review action against a public authority does so at risk. The Provider (usually through no fault of their own) may end up not getting paid and may end up losing large sums of money because, ultimately, permission is not obtained. We are aware that this has led to Providers refusing to take Judicial Review actions at all. In our case, it has led to us having to be very cautious before deciding to launch Judicial Review proceedings; it acts as a disincentive for Providers not because cases do not have sufficient merit, but because there is a risk of the work completed being unpaid. Judicial Review is a vital tool in holding public authorities to account for their decisions, actions or omissions and these Regulations are having an extremely detrimental effect on poor and disadvantaged people who may be subjected to unlawful decisions, actions or omissions by public authorities. This, in itself, undermines the rule of law. We fully endorse the prophetic Public Law Project response of 1 November 2013 to the ‘Judicial Review: Proposals for Further Reform Consultation’ which expand upon these concerns.
Mobile Homes Act 1983 Matters
Albeit that, eventually, in 2011 in England, security of tenure and other rights were given to Gypsies and Travellers on local authority sites by including them within the Mobile Homes Act 1983, LASPOA took away the possibility of legal advice in these areas apart from when it involves “loss of home” or where there is some possibility of a Judicial Review. Many Gypsies and Travellers have very poor educational attainment and many are not literate or are barely literate. Therefore, in many cases involving sometimes very important matters, legal advice under the Legal Aid Scheme is not available.
Exceptional Case Funding (“ECF”)
In our experience, ECF applications are met with protraction and obfuscation. Firstly, Providers are not paid for the preparation of ECF applications and, where granted, it can only be granted from the date of submission. Secondly, even after completing an often very detailed application, our experience of the ECF decision making process by the LAA is one of obfuscation and delay.
By way of example, in February 2017 we submitted an ECF application for a 3 day public inquiry concerning planning permission. The application was supported with full evidence and 7 pages of submissions setting out the legal position and addressing the ECF criteria. We received the decision the day before the public inquiry was due to take place in April 2017. ECF was refused on the basis of a poor prospect of success; the LAA decision maker had cherry-picked the reasons supporting the decision rather than taking a balanced view with the very good reasons for funding the case. Despite this, we had to proceed with the inquiry. We appealed that decision immediately. While waiting for the appeal to be determined, in June 2017 the outcome of the public inquiry was delivered. The LAA subsequently raised a number of queries (which were already set out in our submissions). After a series of complaints about delay, in November 2017, ECF was granted but date limited to the 3 days of the inquiry in April 2017. Subsequently we had to appeal the same and seek an increase in costs. This appeal was successful. Essentially, all of the work between February 2017 until November 2017 was completed at risk by ourselves and appointed Counsel. Most Providers would, understandably, not be willing to take this risk.
Housing Law
The Bach Commission recommended the return of Legal Aid for housing law in general and, for the reasons given by the Bach Commission, we agree with that recommendation.
Legal Aid Agency
LASPOA also saw the transfer of the management and running of the Legal Aid system to the Legal Aid Agency (LAA) within the Ministry of Justice. It has to be said that the inefficiency, bad decisions, delays and other problems with the LAA in the wake of LASPOA have made it extremely difficult for all Legal Aid Providers and the introduction of the CCMS online system has wasted countless amounts of time and caused immense problems for Providers. Whilst there has been an improvement in the working of the technology of CCMS, the same cannot be said of the decision making. There is a fundamental problem of a lack of trust on both sides. We do not trust the LAA to employ caseworkers who have the requisite knowledge and skills to assess the merits of our application. The Legal Aid Agency does not employ a single lawyer in the casework team. They make decisions which are legally illiterate. We think that the LAA do not trust us to comply with our professional obligations when it comes to exercising delegated functions, nor even our legal knowledge. This is demonstrated by the number of times that they “second guess” our decisions without giving reasons. Costs are increased due to the appeals brought about by poor decision making. It is essential that the quality of the decision making in CCMS and the defects in the system (in which, in effect, you have to lie to be able to successfully get to the end of an application for civil funding) are addressed.
The Community Law Partnership
14 June 2018