06/11/2007

Statistics can be fun at the SHLA

The Social Housing Law Association has released a ‘Policy Statement’ on the need for legal aid reform. Briefly, they claim that far too many weak cases are brought against social landlords by legally aided tenants and that the subsequent litigation costs to social landlords are unfair as s.11 protection means the landlord cannot recoup their costs even if they ‘win’. They want a tougher merits test by the LSC and, as a sweetner, suggest compensating by lifting the means test limit.

How they support this allegation about ‘weak cases’ being brought willy-nilly, apart from extreme hypotheticals, is by an attempt at statistics. This is what they say:

One way of gauging the extent of the problem is to consider the number of reported cases that are brought by tenants with legal aid. Although reported cases do not record whether the tenant of a social landlord had the benefit of legal aid s/he will invariably have had legal aid unless appearing in person. Of cases reported in the 2005 Housing Law Reports, 44 of them involved social landlords. Tenants initiated 80% of them yet won only 23%. This figure suggests that the merits threshold of reasonable prospects is not being adequately enforced. Moreover social landlords initiated only 20% of them yet won 77% and this figure suggests that social landlords impose a much higher merits threshold on themselves.

In a spirit of disinterested inquiry, I thought I’d see just how many ways this exercise is unrepresentative and useless for all practical evaluative purposes. Where to start…

The selection is from reported cases. These are, by definition, unusual and unrepresentative. They are reported either because they are a higher court decision, appeal decision or because an unusual point of law or potential precedent decision is involved. They are, therefore, by definition, likely to involve a high proportion of difficult cases. Only one year of Housing Law Reports, 2005, is analysed, making no allowance for a potentially exceptional year.

I’ll leave alone the assertion that the tenants will ‘invariably’ be legally aided.  It is an unsubstantiated assertion, but I’d be willing to stipulate that a very high proportion will have been.

Of the reported cases, 44 involved social landlords. Out of how many? We aren’t told. Is this a large proportion? An isolated few? No idea.

Tenants ‘initiated’ 80% of the cases. What is meant by initiated? I simply don’t believe that the tenant was the Claimant in 80% (35.2 cases? At least get the numbers right). I can only surmise that applications and appeals by tenants in existing proceedings begun by the landlord, are included in this figure. These are not ‘tenant initiated’.

Tenants won ‘only 23%’ of the cases (23% of 44? 10.12 cases? or is it 23% of the 80%? We aren’t told but it looks like the former). It appears from earlier in the statement that the definition of ‘won or lost’ for the SHLA is solely a costs order:

The LSC is not currently able to say what percentage of its funded cases are won or lost (ie which side has to pay the other’s costs).

So anything with no order as to costs, costs reserved, or something like a stay of warrant application which can be successful for the tenant – warrant suspended – even if costs are given against them (quite common), will be taken as a loss by the tenant. In terms of  social housing cases, for these and other reasons, a simple costs award is a wholly inadequate measure of ‘winning’. It is sadly without a trace of irony that the SHLA proposes the costs order test as a better replacement for the LSC’s test of ‘substantive benefit’.

Social Landlords initiated ‘only 20%’ of the cases (8.8 cases?). This is dubious, for the reasons given above. Still, we are told they ‘won’ 77% (33.8 cases? or is it 77% of the 20%. We aren’t told). This supposedly illustrates that landlords have ‘a higher standard of merit’ in bringing cases. It does no such thing, of course. Unless the figure is 77% of the 20%, it says nothing about the level of success by the landlords in the cases they ‘initiated’, just their level of success overall. It would be entirely possible for the landlords to have lost all of the cases that they brought and still have a 77% success rate.

So, a bunch of meaningless and inaccurate figures, from which tendentious conclusions are reached. What makes it all the more annoying is that the members of the SHLA are the ones who actually could give clearer figures. The social landlords and their lawyers have the figures on cases against publicly funded tenants and their outcomes, after all.

So, to any SHLA members reading this, how about it? Some actual figures? It would be interesting. But you will need a better measure of success than a costs order, honestly.

By the way, the one hypothetical but supposedly typical example of a weak but funded case is the anti-social tenant who denies everything in the the face of considerable evidence.  Such a case would very likely not satisfy the LSC funding conditions and funding would likely be withdrawn as soon as the LSC noted that there was no defence to substantiated events or convictions. How do I know? I have seen it happen, more than once. The client will have been advised of the low chance of success and the probable withdrawal of funding. If they persist in their instructions and by some miracle funding isn’t withdrawn, then it remains the legal aid lawyers’ duty to follow their client’s instructions, even if inwardly screaming.

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.

6 Comments

  1. simply wondered

    permit me a brief (that’s a lie) rant about RSLs.

    A FICTITIOUS situation:
    A group of working people on low-moderate incomes, some key workers buy Shared Ownership units in a property refurbished by a RSL – let’s call this anonymous RSL nitting holl housing group (not their real name you see). RSL gets a social housing grant of £250K to do the refurb. because they are an RSL and really not fit to scratch their arses without three volumes of instructions and a diversity requirement, they don’t bother to oversee the works (despite taking their 15% management rake-off). as the builders are unscrupulous cowboys who bought the contract with payments to senior staff at said RSL and they know the RSL don’t manage anything, they do pretty much as they please and £250K vanishes. jobs are charged for and not done or done in a half-arsed fashion.
    flats are pressure-sold before completion of the refurb which has overrun and prospective buyers have no chance to inspect the whole building or have meaningful surveys done. they buy on a number of bases: they are first-time buyers (condition of scheme) and naive, they believe dealing with an RSL means they will be teeated fairly (bless ’em!), they have written statements about what will be done (including a new roof), it’s the only way they can get a bloody flat – it’s london in the late 90s for god’s sake.
    4 years of failed maintenance later, a survey is done by the same surveyor who looked at the property when the RSL bought it for refurb (he is totally independent you understand – just does a lot of work for this RSL). it finds £600k of work needed in ten years for a block of 25 units. this includes total replacement of the roof (hold on…). it comes with 15% management fee for the RSL and a nice fee for the surveyor. residents choke slightly at the projected increase of £300 per flat per month in service charge. case goes to LVT.
    RSL take this somewhat seriously and the people in charge who can scratch their arses with only one volume of instructions get a nice city firm of solicitors to represent them at this low-cost tribunal (let’s call them worrick.) it costs £65K but no worries because it all gets charged back to the tenants!
    RSL get arses kicked in LVT – partly because their staff don’t bother to turn up for the hearing and look like idle fecks when they do. city lawyers tear hair out.
    RSL are advised to appeal (another £100K for lawyers?) and so it continues. property continues to deteriorate.
    This msut be one of those very few (ahem!) cases brought by the landlord and won by the tenants. it probably wouldn’t be part of their fantasy figures as costs weren’t awarded against the RSL – you can’t generally get costs in the LVT (unless you are the landlord and can add them to the service charge as part of your necessary expenses of computing and collecting the service charge).

    res ipsa loquitur.

    whew – sorry if you’ve actually read all of this – i feel so much better now!

    Reply
  2. contact

    S’trewth, Simply. A sorry tale. Any luck getting representation for the fictitious appeal to the Lands Tribunal? I believe that costs orders are possible in the Tribunal and defending an LVT judgment may be quite an attractive prospect for a firm on that basis.

    Reply
  3. J

    The LT now has the same costs powers as the LVT (£500 for frivolous, vexatious etc conduct – s.175 Commonhold and Leasehold Reform Act 2002), so you’re likely to face the same problems in securing representation that you had with the LVT.

    You might have some luck with the Bar Pro Bono unit. They’ve arranged representation in two cases in the recent past (LB Brent v Hamilton, LRX/51/2005 and Volosinovici v Corvan Properties LRX/67/2006).

    Reply
  4. contact

    Thanks J, I didn’t know that, which shows that I don’t do much LVT/LT work. Could be a problem for representation, I agree. I believe the College of Law law centre also does LVT cases pro bono, by referral only though, as I understand it.

    Reply
  5. J

    Yes, the College of Law (and, I think, BPP) have schemes for their BVC students to provide representation and limited case prep and they’re certainly both worth contacting.

    Reply
  6. simply wondered

    which in a glorious circle brings us to the fact that i am currently studying at bpp and am preparing to do some pro bono – not for the entirely made-up case above – that would be silly!!! and as i’m only doing the gdl i cannot deal with cases dealing with anything more significant than a small hamster with a slight cold. fair enough i suppose as i could be just out of college with a geography degree, but i actually have experience of handling a pretty big and complex (albeit not real) case. roll on the bvc when i can do guinea pigs with really nasty coughs. for free…

    Reply

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