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Unlawful eviction and harassment
16/04/2010

Access to Justice

An anecdotal rant, for which forgive me. Sometimes one needs to vent, but this is hardly an unusual situation. It is ‘just’ an example of the viciousness of the public funding boundaries. I’ve combined a few instances in what follows, and changed details for the obvious reasons, but all the salient points are true.

Let us say that I just saw a prospective new client, who had received notice of warrant. She was a Council secure tenant and the issue was rent arrears of several thousand pounds. Various reasons given, but alas none of them involving housing benefit.

The original possession order – which she didn’t have to show me – was from about 2004 judging by the claim number. According to the client, there had been two previous stay applications, where terms were c. £5 per week towards the arrears. Also at some point, the arrears had been paid off, but then built up again.

Admittedly there is an absence of documents, but my nose is telling me that there may well have been procedural issues, either on the SPO, on its enforceability or obtaining a warrant now. Could be wrong, of course, but there was that faint but distinctive odour of cock-up by the Claimant.

After a chat, it also appeared that there was significant disrepair at the flat and had been for some 2 years or more, including long term water penetration through a bedroom ceiling. There had been inspections but no works by the Council. However, although I couldn’t be sure without the possession order, the odds were that she had been a tolerated trespasser from 2004 to May 2009.

Sounds like an application to stay with disrepair counterclaim? Possibly with either a Schedule 11 Housing and Regeneration Act 2008 application for the replacement tenancy to be treated as continuous (as per Litchmore) or to vary the possession order to a Postponed Possession Order under s.85 Housing Act 1985, to get the full period of disrepair. Certainly that is what I was thinking.

And then, the client had two young children, one with a significant disability, and had serious health problems herself.

So, bang out an initial letter asking for stay by consent and variation of the possession order to a PPO, get hold of the documents then draft up the application?

No.

The prospective client worked. The combination of wage, tax credit and child benefit took her just over the gross income cap for legal aid eligibility, though child care costs and other deductions would have put her in ‘eligible with a contribution’ territory otherwise. No public funding – on the basis of that 50 quid or so a month gross.

A CFA? – after all those are supposed to enable access to justice? No. On the basis of the client’s account of the disrepair (and who knows what might have come out on the documents) even my highest estimate of quantum would be at roughly the level of the arrears. The odds of doing better than the arrears and thereby having a sniff of a costs award were, frankly, touch and go at the very best. This was not going to be a quick or cheap case, plus there would be necessary disbursements (expert fees, court fees on the counterclaim). On an dim and distant chance of costs – couldn’t do a CFA.

Pro-bono? With the best will (and amount of free time) in the world, that runs into the same problems. Hefty disbursements, certainly way beyond anything the client could fund (if she could, I’d say pay off or down the arrears now and then I’ll do a disrepair claim on a CFA). Even if I could do it for free, it would not be possible.

And yes, I looked at the outside chances – insurance policies etc.. No.

As far as I can see, I can’t do the case. There is – at least on the prospective client’s account – a good shot at not just staying eviction but reducing, even perhaps eliminating the rent arrears and of course getting repairs done. But to bring a counterclaim of that sort and to carry it through adequately unavoidably takes money, even if just for disbursements.

I think she likely has a fair chance at a stay application in person, although she is probably not going to be great in front of the DJ. But that disrepair claim, the repairs and her rightful damages are going to go by-the-by, as is the chance to stabilise her situation. And of course, she may be evicted.

And this is the result of £50 per month, although it could equally be £1 per month. If you are over the gross limit, you are over.

Of course, we all know this already and have been through it many times. But sometimes it drives me up the wall. Just saying.

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. David

    On the basis of your comments above on income, can anyone explain why I read reports of the 3 MPs charged over the expenses row get “legal aid”?

    Reply
    • NL

      That is criminal not civil legal aid. A completely different set of rules and criteria apply.

      Reply
  2. house

    She can always try and reapply if her wages flucturate. Also if appropriate, I wouldn’t have thought that say not doing overtime would count as intentional deprivation of resources.

    It’s unlikely to make a difference but if you say saw the client at the beginning of April then don’t use the new benefit rates but the old ones up until the 1st when they changed.

    Reply
    • NL

      Yep. Looked at this with each of the cases involved. Not a flier. And the gross income limit hasn’t shifted.

      Reply
  3. house

    Oh well worth a try. It’s unfortunate. I see a lot of non-eligible part time working single parents who you think should be eligible but aren’t.

    Reply
  4. NL

    Just as an update, I have been contacted by a reader about this post and have been able to refer the most recent of these cases on to be done pro bono.

    This lovely person and their equally lovely organisation must remain anonymous, as they couldn’t deal with a flood of enquiries, but a big thank you to them. That is hopefully one matter heading towards a happy ending.

    Reply

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