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.