Legal Aid Agency FAQs*

The Legal Aid Agency has released a set of ‘frequently asked questions’ on scope and funding after 1 April just gone. A copy is here. The housing section is at 74-109

There are few surprises, but worthy of note is the position on disrepair:

81. Are damages regarding housing disrepair in scope? Can I claim for work regarding damages as part of the disrepair case?
You must refer to Schedule 1 of LASPO to identify whether a case is in scope and consider specific exclusions outlined in Part 2, Schedule 1. In relation to housing disrepair, Paragraph 35 Part 1, Schedule 1 only describes services in relation to the removal or reduction of the serious risk of harm to health, it does not outline any claim for damages. Damages arising from a disrepair claim will fall outside of scope and therefore must be funded separately from the injunction or order for repairs claim. If providers carry out both then it will be their responsibility to apportion the work and ensure that no legal aid claim is made for the out of scope work. An explanatory note should be maintained on the case file. Providers should note that if they do obtain a legal aid certificate the statutory charge will attach to any damages recovered in the same proceedings.

So, any damages claim will have to be otherwise funded from the start. Quite how that will work when a damages only claim will quite possibly fall under the new small claims limit of £10,000 is anyone’s guess. So, the LAA’s chances of recouping public funds via inter partes costs or statutory charge have been correspondingly diminished.

And don’t go thinking of getting a certificate for pre-issue or protocol stages

82. Should expert reports (e.g. surveyor reports) for Pre-Action Protocol on Housing Disrepair be claimed under legal help or legal representation?
Section 12 of the Lord Chancellors Guidance states that where services are provided at an early stage of the case to fund expert reports to investigate the merits of the claim, this work is claimed under legal help.

But on counterclaims to rent arrears possession claims:

83. Can a counterclaim for damages be in scope in respect of any other issue than serious disrepair?
Any counterclaim that is properly pleaded as a defence to possession proceedings is in scope, subject to the Part 2 exclusions set out in paragraph 33 of Part 1, Schedule 1.

Also, perhaps surprisingly in contrast, it looks like damages only unlawful eviction claims remain fully in scope.

85. Are damages for unlawful eviction in scope?
Damages for eviction are within scope. Paragraph 33 of Part 1, Schedule 1 describes civil legal services provided in relation to the eviction from the individual’s home of the individual or others and this therefore could include any damages relating to this. As with all cases you must refer to Schedule 1 of LASPO to identify whether a case is in scope and then consider specific exclusions outlined in Part 2, Schedule 1.

Lastly, the situation on dealing with housing benefit issues in a rent arrears possession claim is confirmed to be exactly as impossibly mad as we always thought:

107. Is all work relating to Housing Benefit out of scope even where it is used as a defence to possession proceedings?
Work to obtain or re-instate Housing Benefit is out of scope, see paragraph 15 of Part 2, Schedule 1 of LASPO. If issues regarding Housing Benefit have led to possession proceedings then legal aid will be available to advise the client on their possession matter. This could include obtaining witness statements in support of a client’s defence to a possession case. It could also include seeking an adjournment of possession proceedings to enable the client to resolve their Housing Benefit issues. However, as stated, legal aid will not be available to resolve the Housing Benefit issue itself. If providers carry out work in relation to Housing Benefit alongside a possession matter it will be their responsibility to apportion the work and ensure that no legal aid claim is made for the out of scope work.

The whole thing bears close reading, not least on the interaction with the telephone gateway on ‘debt’ (mortgage possession), harassment and discrimination cases, succession and quiet enjoyment.

*No, not those kind of frequently asked questions. They won’t answer those.

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Posted in FLW article, Housing law - All, Various (non-housing) and tagged , , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

5 Comments

  1. They do suggest in the reply to question 122 that you can apply for exceptional funding for those parts of the case which are out of scope. We at CLP will try to do this. Is anyone in a postition to monitor the results of such applications? I don’t expect our professional body will do anything so useful given the completely useless survey that they have devised in relation to the effect of LASPO cuts on clients with housing problems, which only asks about those clients facing possession proceedings whom you have turned away. Er, there are none.

    • Some of us are looking at monitoring at the moment, for various reasons. It may be something that HLPA tries to co-ordinate, I’ll pass on any details. I anticipate exceptional funding will be locked down tight. Reasons will be interesting.

  2. We also need to be careful when demotion of a tenancy is pleaded in the alternative to possession. The new standard wording for possession reads “to be represented in an action for possession of property and/or demotion of tenancy”, so you might be forgiven, had you granted emergency legal aid before the FAQs were published,for believing that you would be paid for the work you did in relation to the demotion claim. Not so, it seems, according to another FAQ and its response:

    “Is demotion of tenancy or demotion orders in or out of scope?
    Demotion of tenancy and demotion orders is out of scope.”

  3. Hi- are you taking on any damages only claims and is this under a CFA? With regard to disrepair joint damages claims are you just not billing for the work done in relation to the damages aspect?

    • Personally, I don’t think it is possible to run disrepair claims under legal aid anymore. Given that legal aid only extends to the urgent works and ends as soon as those works are done, the majority of the claim, for remaining works and damages, would have to be funded under a CFA anyway. The indemnity principle would apply on costs, so it couldn’t be done without some form of funding.

      Counterclaims to possession are another matter, as the whole counterclaim is funded.

      A damages only case would have to be clearly worth well over £10,000 to be considered for a CFA, as the small claims risk would otherwise be too high.

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