Legal Aid reforms – Housing

The Ministry of Justice ‘consultation paper’ on reforms to legal aid to achieve a £350 million cut by 2013/4 is out. It is a hefty 224 odd pages. Responses are required by 14 February 2011

I’ve done what I can to fillet out its significance for housing and social welfare provision, cutting out the various justifications, excuses and statements of purpose. The following are the proposals on which consultation is to take place.

Scope:
Housing – to remain in scope are:

  • homelessness, at least at s.204 appeal (the document is silent on help at s.184 or s.202 stages).
  • possession claims (tenancy and mortgage)
  • disrepair counterclaims to possession claims
  • “serious housing disrepair cases where the litigant is not primarily seeking damages, but is seeking a repair of such significance that without it the life or health of the litigant or their family may be at serious risk (such as the repair of gas equipment)”
  • defending ASB proceedings

Out of scope:

  • ‘non serious’ disrepair [4.78 and then the following at 4.194)
  • an action to enforce a Right to Buy;
  • an action to enforce a Right to Buy a freehold or extend the lease;
  • actions to set aside a legal charge (for example, a mortgage) or the transfer of a property;
  • actions for damages and/or an injunction for unauthorised change of use of premises;
  • an action under the Housing Grants, Construction and Regeneration Act 1996;
  • applications for a new tenancy under the Landlord and Tenant Act 1954;
  • an action for re-housing;
  • an action under the Access to Neighbouring Land Act 1992;
  • an action for wrongful breach of quiet enjoyment;
  • housing disrepair proceedings where the primary remedy sought is damages, including damages for personal injury;
  • an action for trespass; or
  • an action under the Mobile Homes Act 1983 which does not concern eviction.
  • nuisance claims (4.239)

Legal Aid will be refused where some other form of funding, like a CFA, is available. (4.265)

Unlawful eviction isn’t mentioned at all. I would presume injunction for re-entry would be in scope but a damages only claim would not be, by a process of analogy.

Other SWL:

Out of Scope:

  • Debt where there is no immediate risk of homelessness
  • Welfare Benefits to first tier tribunal appeal
  • Employment – none at all.

In scope

  • Judicial Review – for all except business purposes.

Interesting to note that the excuse throughout is the availability of voluntary sector advice and assistance for non-life threatening issues. For housing, Shelter and CAB are flagged up as the fitting alternative to legal aid funding. I wonder how they feel about that?

Access
At 4.272, we find:

We propose that, in future, we will provide a simple, straightforward telephone service, based on the current Community Legal Advice (CLA) helpline (first established nationally in 2004). This advice service will be able to refer clients to the source of advice most appropriate to them, and will act as a reliable onestop shop for clients looking for legal advice. The CLA helpline will be established as the single gateway to civil legal aid services. All clients will be able to access the first tier of the service (the Operator Service) while the second tier will offer specialist advice to eligible clients in all categories of law within the scope of civil legal aid. In the vast majority of cases this will mean that clients will make their initial contact to access civil legal aid services through the Operator Service, rather than through a face to face provider. However the services will be designed to minimise the risk that clients with emergency cases experience delay in accessing the help they need.

Can that mean what it appears to mean? No direct approach from clients? And a further layer of phone advice before any referral to a face to face provider?

And there is to be a paid-for phone advice service.

Eligibility (Chapter 5):
Passporting for Income Support, ESA, income based JSA, pension credit to end. Capital to be taken into account at the same rate as non passported (currently limited to up to £8000)
The formerly passported with disposable capital over £8000 will have to make a contribution.
Any client with over £1000 in disposable capital to pay a one off £100 contribution, over monthly contributions, to be collected by the legal aid practice and set against payments by the LSC
Over £3100, payment of £1 of capital for each £1 over, up to £8000.

Property value to be considered
Non contested property cases
Pensioner disregard of £100,000 abolished.
Equity disregard of £100,000 scrapped.
Mortgage disregard extended to full value of mortgage, subject to a ceiling of £200,000 gross property value, or £300,000 for a pensioner with disposable income below £315 per month. Mortgage disregard limited to one property only.

Contested property cases
Equity disregard of £100,000 scrapped
‘Subject matter of dispute’ disregard at £100,000
Mortgage disregard extended to full value of mortgage, up to a limit of gross value of £500,000

Income contributions
Maximum contribution level raised to 30% of disposable income between £315 – £733 per month, up from 20% maximum at present. Two options provided, one tapered, one not.

Fees

An across the board cut of 10% in civil legal aid rates. Enhancements capped at 50% for County Court, or 100% for High Court and above.

Barrister rates to be codified as follows:
Hourly rate

  • Junior counsel in county court £108.00
  • Senior counsel alone or leading in High Court £135.00
  • Led junior counsel in High Court or Court of Appeal £112.50
  • Leading senior counsel in Court of Appeal £157.50
  • Queen’s Counsel (where approved for instruction by rate (-10%) LSC) in the High Court or Court of Appeal £180.00
  • Leading senior counsel in the Supreme Court £180.00
  • Queen’s Counsel (where approved for instruction by LSC) in Supreme Court £225.00
  • Noter/Pupil/2nd led junior counsel £36.00

In cases where there is a good chance of a costs award, payment in the event of being unsuccessful (or in the interim?) will be at ‘risk rates’: “where costs will be recoverable in the event of the claim succeeding, lawyers are paid at ‘risk rates’: £70 per hour for solicitors; £50 per hour for junior barristers; and £90 per hour for senior barristers, without general enhancements.”(7.15). This will apply from a post ‘investigatory help’ stage, rather than the £25K VHCC limit as now (or post permission in Judicial Review).

Expert fees – Surveyors etc. £50 per hour and proposals for fixed fees for reports and court attendances. (Annex H and J)

And finally
As a parting gift, price competitive tendering some way down the line for all.

Comment
This is all intertwined with the Consultation on the Jackson Report, also out today. What this will end up doing to CFA arrangements, or indeed fixed costs in fast track cases, will clearly have an impact on some cases proposed to go out of scope.

First thoughts…

It is a good thing that homelessness and possession have, to some extent at least, been recognised as priority concerns, and one would hope that some obvious idiocies like phone only access will get lost in the wash, but this is going to present some very large problems. I hate to have to roll out the ‘access to justice’ line once more, but someone hasn’t done their market modelling in thinking this through.

If this happens, it is going to have a very significant impact on firms and organisations that followed the LSC’s urging to become holistic social welfare law providers in the last round. In a complete reversal of direction, only (some) housing would remain in scope. Big problems for some, not least those following the ‘paralegal factory’ model of practice.

That 10% cut in fees across the board is going to be very hard for some, I’m thinking about some law centres and NFPs that have remained on a knife edge of viability since fixed fees came in.

And then there are the unclear bits. Is homeless assistance to be restricted to s,204 appeals? These are all that is mentioned. So no assistance with applications or s.202 review submissions? How is one to determine life threatening disrepair without an expert’s report (and funding for it)?

The proposals for telephone access and referral only are, let’s be honest, bonkers. Street homeless, for example? How are the most vulnerable left within scope to know of this magical number?

At a tangent, both CABx and Shelter are used as a fig leaf throughout as ‘voluntary sector’ organisations which people can access for ‘non-urgent’ advice and assistance. I’m not sure what either organisation will make of that – not only being asked to bear that weight, but also given their rôle in provision of legal aid Social Welfare Law work – particularly under the new contracts that started today (15 Nov). That sounds suspiciously like a double hit for them – a bigger burden in the ‘voluntary’ side and withdrawal from scope of much of the SWL provision funded. But this proposal will be tough for every provider.

Coming next – time and sanity permitting – the Jackson proposals costs consultation.

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

25 Comments

  1. I volunteer at Toynbee Hall.

    I can’t begin to count the number of referrals we receive from the local CAB.

    Pro bono cannot take over this caseload. We don’t have the facility or capacity to run a case. We generally give one off advice. That’s it. We are running to capacity as it is. We are working for free as it is. This pip’s been squeaked.

    • Societress – Yes. This is the most objectionable part of the document throughout. The assumption is that voluntary or other bodies (ombudsmen etc.) will be able to pick up the slack, and that the courts and tribunals will somehow cope with the additional litigants in person. Ain’t going to happen.

    • lol I’m sure our learned friend judges at Clerkenwell etc have all the time in the world to sift through the disorganised thoughts of a litigant in person.

      In the meantime, is the Government going to be funding these charities just to keep them afloat – I’m not talking about funding the extra capacity – I mean right now.

      Does the Government think charitable giving magics itself out of the ether?

      The Government is attempting a poor copy of Reganomics. The difference in the states is that taxes are assessed at the end of the year differently. Because of this, they have a culture of most people contributing something (more than a couple of quid in a hat)to charity in return for a nice write off. We simply don’t have that culture here. Look for some charities to hit the wall once Big Society Dave and George pull their funding.

  2. I work for the CAB, funding for next year is still not decided so not sure how our role will pan out or indeed if any experienced paid staff can afford to hang around to see if our contracts will be renewed in April. I do repossession work including the Duty Desk (as a lay adviser), we also have an LSC contract for welfare benefits but will we be here at all post March?

  3. The fact that this runs alongside a proposal emasculate CFA’s (which were one of the justifications for removing legal aid in areas like PI) is worrying. Jackson’s idea that its reasonable sometimes to have a situation where defendant’s get their costs but claimant’s don’t (a sort of evil mating of the English and American rules) is nakedly an attempt to save NHS clinical negligence costs, without regard for its wider implications.

    Its a great shame that the existence of pro bono (and volunteer) work gives the government the excuse to remove already inadequate public funding in the areas covered.

  4. it seems odd to concentrate on a detail when there is so much to worry about, but the inclusion of disrepair when life-threatening is going to be unworkable.
    punter phones the access line and says ‘i have life-threatening disrepair’. what happens next? they send a surveyor? they do phone triage (probably just hang up)?
    even taking on board the hope that the phone access nonsense will go, how does a face-to-face advisor get into a position to decide whether the issue is within scope? unchargeable investigation? and it won’t be done at a law centre because they are going to be things we have to tell our children about.

    • Completely agree. Unless someone turns up and says ‘I’ve got a gas leak and the gas company have sealed off my flat’, how can one tell without investigation?

  5. What is life threatening disrepair anyway ? For some vulnerable individuals with chest problems it could be damp – a faulty electrical socket ?

    In any event, everyone will have gone bust doing them at risk rates.

    The phone triage is as absurd as allowing a GP’s receptionist with a medical dictionary whether you are allowed to see a GP

    As for the obfuscation over unlawful eviction – it appears to be that you can have legal aid against landlords who act lawfully to seek possession but not unlawfully – the idiocy of this proposal is staggering.

  6. On first viewing your summary NL my first major alarm bell was no legal aid for breach of quiet enjoyment. Isn’t unlawful eviction quiet important?

    Do they include unlawful eviction with other situations where the individual faces homelessness? The document says:

    “4.15 We also consider that proceedings where the individual faces homelessness are of high importance… Some of these cases will be against private individuals, but other cases will be about holding public authorities to account for their statutory duties.” (Capitals added).

    I presume they meant possession and 204s, but they must surely also mean unlawful eviction injunctions?

    • Well one would hope so but there is no qualification of the proposals to exclude breach of q.e . In any event, it would be idiotic not to cover all such claims – otherwise the worst landlords – those who behave in such a way that the tenant is too scared to seek reinstatement can avoid funded claims !

    • It would also mean more homelessness and more pressure on local authorities. I am hoping it is an oversight, but it is certainly something that needs to be raised in the consultation.

  7. if homelessness is a trigger to come within scope, how are they going to define it? will they have to wait for the LA to make a s184 decision, by which time whether ‘homeless’ or not they will presumably be without accommodation. unless LAs now get proactive with the entire process and i can’t quite see that.

    oh no hang on – they’ll be ringing the CAB, i forgot. no disrespect to cab but i shouldn’t worry about more advisors trained in homelessness issues, they are going to have to get tanks of trained octopuses just to answer the bloody phones first!

    actually those extra positions in local authorities will sort them. the new case workers will probably fly to work each day on a fleet of fine tamworths. i just had to get eric pickles in somehow, didn’t i?

    *disappears in crowd of small people singing ‘sleep on the yellow brick road’*
    there’s no place like errr well this kerbstone, toto.

    sorry, i think i have been driven a little madder than previously by this unscheduled return to the 1980s.

  8. It’s about shoving future housing provision into the private sector. And softening up landlords by removing al barriers to them doing whatever the hell they want, when they want.

  9. I presume these proposed cuts will be followed by a mass of legislation being repealed that no-one will ever be able to find out about or enforce like the Protection From Eviction Act, Landlord and Tenant Act etc

  10. Jesus H. Christ. They’re going to kill off unlawful eviction? But that’s just nuts! If this happens we might as well just pack up and go home considering security of tenure will be reduced effectively to 0.

    I suppose that sale and rent back rescissions are right out the question.

    • Jon

      The paper is silent on unlawful eviction, but ‘an action for breach of quiet enjoyment’ is out, as it stands. What this means is anyone’s guess. My best guess is that this will work out in the wash when the ridiculousness of public tenants getting legal aid to defend possession, but a tenant of Rachman not getting it is put back to them.

      I can only hope that the same is true of the silence on homeless legal aid prior to s.204 review.

      Sal and rent back recissions may fall under possession? Depending on circumstances. But if not possession, then I think they would be out, yes.

    • I know I’m playing catch up but I thought LAs normally prosecute under PfEA 1977 (or the Police though that would require them to understand what an unlawful eviction is, rather than it just being an occasion to hold the landlord’s coat). I’ve not seen a tenant commence their own action.

    • Humphrey – you really must get out more. Applications for injunctions for re-entry as an initial step in a civil claim for damages do indeed happen, quite often. Granted that legal aid can be granted only if a TRO has been approached first. But many Local Authority’s TROs don’t actually do injunctions any more. There is certainly no ‘normally’ about LA prosecutions.

      Of course, a criminal prosecution by the LA would in no way prevent a civil claim for damages – it would actively help if the criminal prosecution was successful.

      There are usually unlawful eviction civil injunctions and claims in the Legal Action Housing Updates and we relay the significant ones – check the category archives.

    • You’re right plenty of interlocutory injunctions and s27 damages claims just won’t get off the starting blocks unless supported by some form of legal aid. I suppose I work in a strange part of country where the LA does use the PfEA 1977, few cases make it to the magistrate’s court as they tend to get resolved – tenant reinstated, landlord behaving properly – usually before the landlord is cautioned and offered an interview under PACE by the LA officer – ATRO would be proud.

    • My dear Humph, not just s.27 damages. A civil claim under PfEA is entirely possible, indeed recommended while legal aid lasts.

      An injunction and claim would be possible under a CFA if legal aid vanishes, but the big problem is retrieving costs from dodgy landlords. Charging orders work, but dodgy LL must have more than one property for this to be viable (otherwise they always say it is their home) and it takes ages. Statutory demands and bankruptcy proceedings are possible but can see the liability go up in smoke. So CFAs against dodgy private landlords are not a happy way to go for most solicitors most of the time.

      You do indeed work in an odd part of the country. In the land of Humph, not only is the LA prepared to take action under PfEA (doesn’t happen round my parts and it is a thoroughly good thing that it does in yours), but the local housing solicitors don’t apparently bring civil claims in consequence (or the TROs don’t even mention the possibility to the tenant), which is a profound dis-service to the client, as long as legal aid to bring such claims lasts. (And why shouldn’t it – all legal aid is paid back when/if costs are recovered).

      I have to ask – be as general as you like – which bit of England and/or Wales do you work in? I might want to move there and set up a practice…

    • ‘Charging orders work, but dodgy LL must have more than one property for this to be viable (otherwise they always say it is their home)’

      well i always think the fact it is being rented out to someone is always a bit of a giveaway.

    • Also, some London boroughs don’t actually have TROs any more. I know Hackney don’t for one, which is just nuts!

  11. Saying that you can have funding for a s204 appeal but not for the steps prior to that is a bit like saying you can be funded to be represented at a possession trial but not for any of the preparatory work. I think (or do I hope?) that the apparent ruling out of ‘an action for breach of covenant for quiet enjoyment’ indicates a lack of subject knowledge by the drafter of this bit of the paper rather than any deliberate intention to restrict funding fro UE cases. Once we consultees show them the error of their ways I’m sure they’ll see sense on this one…

  12. Pingback: Why I back the legal aid reforms – and more | Head of Legal

  13. Pingback: Why I back the legal aid reforms from Ken Clarke – and more — The Wardman Wire

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.