The Bach Report (8) Housing Law

 

This is the sixth in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix 5 to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

 

Before setting out what was said about Housing Law in the Report and in the Appendix which I wrote, it is perhaps apposite to cite two contrating impressions of the state of justice today in housing cases and in other fields of legal practice where people simply cannot cope because they do not have the basic skilled help they so badly need.

First, here is what I heard our newish Lord Chancellor say yesterday morning when I attended the installation of Sir Ian Burnett, as the new Lord Chief Justice (complete with the Collar of Ss!):

 Sir Ian will now take on the constitutional responsibilities of Lord Chief Justice. And together we will work to ensure that justice is at the centre of our society; to secure access to justice for all, whatever their means or abilities; to provide the where-with-all through which the judges can administer justice openly and swiftly without fear or favour, affection or ill-will….

And of course our courts, after all, are grounded in the Rule of Law – and our law is a breathing, living entity that throughout history has offered a measured, thoughtful and certain response to changing circumstances, and will I am sure do so countless times again.

In contrast, there was a brilliant piece of reportage by Emily Dugan, who spent three days watching what was going on when judges were attempting to secure justice for all at the Birmingham County Court.

Here are three extracts:

It has only taken Adrian Hawkes four weeks of working as a civil lawyer to loathe his job. On the day BuzzFeed News meets him he is representing a lender that offers high-interest car loans to people with bad credit.He already knows his opponent will have no lawyer. In the short time since he began, the 25-year-old has fought around 35 cases in courts across the Midlands, including evictions and repossessions, and says he’s “never gone up against a lawyer.”

“It’s absolutely not fair,” he says. “It’s very much a system for those who know and those who can pay.

“I come out feeling like the worst person in the world because I want to help them but I can’t… I’d say about half the cases I’ve worked on, the outcome would have been different if the other side had a lawyer.”

 

The waiting rooms for the courts in Birmingham’s Civil and Family Justice Centre aren’t like the ones you see on TV. There’s no grandeur or fine wooden furniture, just screwed-down chairs, stained industrial carpet, fluorescent lighting, and the constant background hum of family life. Babies breastfeed, children push toys along the floor, and toddlers gambol around, oblivious to the huge decisions being made about their future.

“It’s like the social in here, you can’t hear anything,” one man observes, sweating nervously as he waits amid the hubbub for a duty legal adviser to help him fight an eviction.

In theory anyone facing eviction or repossession is entitled to free legal advice, but in practice, according to Hawkes, many never see anyone.

“You can ask for [a legal adviser from] Citizens Advice but it can be a three-hour wait in Walsall and people go in unrepresented… I’m normally in Wolver-hampton and at the moment they’ve only got one Citizens Advice person for Wolverhampton and Dudley, so depending on which one she’s in, there’s no Citizens Advice in the other one.”

He adds: “The judges can only do so much. The judges try and go behind the law to help but then you get the big organisations with money appealing it until they get the decision they want.”

 

The University of Birmingham’s law department published research into litigants in person in the city’s civil and family courts earlier this year. The study, based on almost 200 questionnaires and a further 25 interviews conducted last summer, revealed the scale of the problems faced by those going into court alone.

Having the mental capacity to take on the case was also a big issue, with 32% ticking conditions on a form relating to mental health or learning difficulties. Half of these people also ticked the box for depression.

Just 29% were in full-time work and 85% declared an income of less than £30,000 a year. More than half of this group earned less than £14,000 and 53% were on some form of benefits.

About half of the sample were in court for issues relating to family law and a further quarter to housing law. The remainder were for issues such as debt and bankruptcy, social security, and some small claims. When asked why they had sought no legal advice, the most common reason given was that they could not afford it.

Extract from the Report

Housing law: The term ‘the housing crisis’ usually denotes the decline in home ownership, the un-affordability of private rented homes, and the lack of social housing. But the huge fall in the number of people who are able to resolve housing law problems constitutes a crisis of its own. As Shelter, among other organisations, told the commission, legal aid used to offer an effective means of preventing and resolving housing issues. It helped people to enforce their rights to housing, housing benefit and a decent service from landlords, providing support at times of difficulty so that they did not lead to personal disaster for them and their families.

The consequences of LASPO have been stark. As the Housing Law Practitioners’ Association wrote in its statement to the commission, it has led to a:

substantial reduction in the number of housing [law] providers and the number of legal aid housing cases being undertaken.[1] Figures produced by the LAA have shown a reduction in housing cases of over 50 per cent since LASPO came into force, in a period in which rough sleeping[2], statutory homelessness[3] and evictions from rented accommodation[4] are all on the rise.

LASPO removed most cases of housing disrepair from the scope of legal aid, greatly weakening tenants’ rights. Previously housing lawyers could provide initial help in disrepair cases and send a letter of claim to a landlord, which usually resulted in the landlord carrying out the necessary repairs, thus resolving the issue with very little public expenditure (the fee payable for an entire case was just £157 plus VAT).

Today, legal aid is only available for a claim brought by a tenant against their landlord for breach of repairing covenant where there is “serious risk of harm to the health and safety of the individual or a relevant members of the individual’s family.”[5] In practice, this means the disrepair must be ongoing. Where claims are for disrepairs which have been resolved, or where the tenant has now moved, or where the disrepair is not deemed “serious”, legal aid is no longer available.

Legal help with respect to housing benefit has also been taken out of scope. This is despite extensive evidence from Citizens Advice and others that preventative advice, as well as performing an invaluable service to clients, helps avoid the escalation of disputes and thus unnecessary costs to both landlord and the courts. The costs are not only felt in the justice system; the effects of avoidable evictions of families, homelessness and so on are felt by individuals, local councils and the NHS. By contrast, the Law Society has calculated that advice in relation to all housing benefit issues could be brought back into scope for an annual cost of between just £1.7m and £2m each year.[6]

 

Appendix 5 to the Report

CHAPTER 3: Housing Law

Expected reductions from baseline year and actual outturns

Volume of cases

2009-10 2016-17 Reduction Expected Reduction
Legal Help & Controlled

Legal Representation

132,137 36,960 -95,177 -52,000
Civil Representation 10,432 7,216 -3,216 -1,200

 

Value of cases (£s)

2009-10 2016-17 Reduction Expected Reduction
Legal Help & Controlled

Legal Representation

22,593 9,247 -13,346 -10
Civil Representation 26,979 19,314 -7,665 -3

Introduction

Housing law is a very technical and complicated area of law. The Encyclopaedia of Housing Law print version runs to over five loose-leaf volumes. There are numerous different types of tenancies (assured shorthold, assured, secure, introductory, flexible, demoted, non-secure) and each is governed by a different legal regime. Social landlords are always represented in court by lawyers, or by experienced housing officers. Private landlords may not always be represented, but as a rule they can afford legal representation. If a tenant is working, then he or she is unlikely to be eligible for legal aid, which is in any event now “out of scope” for most housing disputes. This heightens the inequality in what is already not a level playing-field in court.

Before LASPO

Before LASPO housing lawyers could give initial advice in a disrepair case and send an early letter of claim to a landlord for a small fixed fee. The threat of legal proceedings would usually persuade the landlord to carry out repairs, thus resolving the issue with very little public expenditure.

Assistance with welfare benefits could also be provided to clients at a very low cost fixed fee. This preventative advice enabled welfare benefits issues to be dealt with swiftly, avoiding the need to put a vulnerable tenant through the stress of legal proceedings for rent arrears, and avoiding unnecessary costs for the landlord (in both legal costs and lost rental income) and the unnecessary use of court time.

Cost benefit analysis of the value of early interventions in the housing field

In 2009 the Law Centres Network (LCN) published a report by nef consulting into the socio-economic value of law centres, using the traditional methods of measuring such impacts.[7] In this report the authors analysed two activities.

The first was an intervention by a law centre which saved a 16-year-old girl from being categorised as “intentionally homeless”, and restored her to being a confident teenager who learned how to manage her finances and eventually took up a full-time college course. They found that for an expenditure of about £1,700 the combined socio-economic benefit to identified stakeholders in central and local government was £20,000: a “benefit to cost ratio” of more than ten-to-one.

The second was a study of the value of the training element of a three-year project conducted by the Southwark Law Centre and Blackfriars Advice Centre called “Preventing Possessions” between 2004 and 2007. Training was provided to over 140 representatives from 39 organisations at a cost of about £122,000. The annual value to stakeholders (including the evictee) of a single avoided eviction was calculated at £56,000, and the “socio-economic cost to benefit ratio” of the training element of the project was assessed as six to one: a benefit of £6 for every single pound invested.

The situation post-LASPO – an overview

Shelter, the national housing charity, told the Commission last year that in 2014-15 there were 112,340 applications for statutory homelessness assistance and 546,500 households accepted for statutory homelessness assistance: an increase of 33% in five years. Shelter research showed that over six in ten renters had experienced at least one of the following problems in their homes in a 12-month period: damp, mould, leaking roofs or windows, electrical hazards, animal infestations and gas leaks.

The Government’s own homelessness statistics showed a steady growth between 2010 and 2015 in the number of cases of people being at risk of being made homeless due to problems relating to their housing benefit. In 2014-15, local authorities in England prevented 25,900 cases from becoming homeless by resolving housing benefit problems, a figure that had increased by almost 400% since 2009-10. Problems relating to a housing benefit claim were the most common reason for households requiring homelessness prevention services from local authorities in 2014-15, accounting for 24% of all prevention cases. Fewer people would need to seek homelessness assistance if they had much earlier advice to resolve their housing benefit problem.

During the same period 4.5 million people came to Shelter for advice – online, in person and over the phone. There was an increase of 12% increase in demand to the Shelter helpline and an increase of 8.6% in the number of people who accessed their ‘Get Advice’ pages.

Shelter told the Commission that the availability of Legal Aid provided a crucial means of preventing and resolving housing issues; of helping people to enforce their rights to housing, housing benefits and a decent service from landlords; and of providing support to them at times of crisis so that the crisis does not become a disaster.

The cuts to legal aid in the housing field (including the non-availability of legal aid for advice about housing benefit) which were introduced by LASPO have meant that fewer households can get the timely advice they need before they hit crisis point, by which time it may be too late to avoid homelessness.

Z2K sent the Commission this case study which illustrates the difficulties created by the unavailability of legal aid advice at a much earlier stage of a tenant’s difficulties with rent arrears:

A client came to see us 2 days before he was due to be evicted from his council tenancy. He was a bus driver. He had had an accident at work following which he had lost his full time job. When he recovered he was only able to find part time employment which did not produce enough income to pay his rent. He did not know that he was entitled to housing benefit and was unable to access any advice that would have told him that. Eventually, in despair, he went to his MP who referred him to us. We helped him apply for housing benefit and persuaded the court to adjourn the hearing. We then obtained a back dated housing benefit payment which together with an arrears payment plan for the balance persuaded the landlord to withdraw the eviction, thus saving for the client the very valuable asset of a council tenancy.

If we had not been able to help him there is no one else to whom we could have referred him. The local Citizens Advice office could have dealt with the housing benefit issue but not the eviction proceedings. A housing solicitor could have dealt with the eviction in theory but not in practice because it could only be resolved by dealing with the housing benefit issue which is not covered by legal aid.

In the opinion of Shelter and of many others with great experience in the housing field, if free legal advice and advocacy were available at a much earlier stage, it would be easier to negotiate a mutually-acceptable outcome to housing problems. Many of the knock-on costs, to the court system, to local councils, to the NHS and, most importantly, to families and individuals themselves, could be avoided.

Lack of legal aid for damages claim for breach of repairing covenants

Legal aid is now only available for a claim brought by a tenant against his or her landlord for breach of repairing covenant (or for other causes of action related to disrepair of the tenant’s home) where there is “serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family”.

In practice, this means that the disrepair must still be in existence when the tenant brings a claim, so that the tenant is claiming an order for specific performance or an injunction requiring the landlord to remedy the disrepair.

The following types of claims are therefore excluded from legal aid availability:

  1. A claim for damages where the disrepair is either no longer present or where the tenant has moved; and
  2. A claim for damages and for injunction where there is some interference with health or safety, but the interference is not “serious”.

If the tenant has lived, perhaps for a very long time, with the distress and inconvenience of serious dampness or other defects in his or her home, legal aid is not available to prosecute a claim for damages so long as any risk to his/her health or safety cannot be categorised as “serious”. Alternative funding, such as a Conditional Fee Agreement (CFA), will therefore have to be arranged for the damages element of the claim. This could mean that any recovery of damages would not only be subject to the statutory charge (whereby the Legal Aid Agency (LAA) has a first charge for its expenditure over any compensation awarded) but would also fall to be reduced by the deduction of the success fee under the CFA and any “after the event” insurance premium taken out by the client. The Law Centres Network told the Commission that in practice this means that unscrupulous landlords can usually ignore disrepair in their properties with impunity, because they know that tenants no longer have any recourse to legal aid to fight their corner.

Claims brought under section 11 of the Landlord and Tenant Act 1985 and/or section 4 of the Defective Premises Act 1972 can be very complicated. The availability of legal aid would provide a more level playing field in court and ensure that tenants only bring claims that have some basis in law and in fact, and that they are not disadvantaged when complex legal and factual issues (such as those concerned with the provenance of damp) are raised by their landlords.

Legal Action for Women told the Commission that in practice women in unsafe or unsuitable accommodation could not take court action against their landlords to obtain a remedy unless eviction proceedings were threatened. They said that in their experience Council housing departments were notoriously intransigent, and that it was practically impossible to get any help for women without the threat of legal action.

The Commission understands that most claims for damages for breach of a repairing covenant result in a successful outcome for the tenant, so that costs are recoverable against the landlord so long as the claim is not allocated to the small claims track. This means that legal aid for disrepair claims has not traditionally constituted a significant part of government expenditure on legal aid.

The reduction in the number of legal advice providers in the housing field

As a consequence of LASPO there has been a substantial reduction in the number of housing providers and the number of legal aid housing cases being undertaken. Figures produced by the LAA have shown a reduction in housing cases of over 50% since LASPO came into force, in a period in which rough sleeping, statutory homelessness and evictions from rented accommodation are all on the rise.

According to Legal Action for Women LASPO has made it nearly impossible to get advice and representation for benefits cases. The remaining agencies, e.g. Citizens’ Advice Bureaux, are inundated and have massive waiting lists. They cite an organisation called WinVisible (WV) as saying:

Vulnerable people with disabilities can’t get the help they need and are crushed by the process of being refused help as they go round three, four or more organisations. Faced with the loss of crucial benefits upon which their lives depend, people suffer horrible anguish and some become suicidal. We are in no doubt that lives have been lost as a result.

The Mary Ward Legal Centre received funding from the local council which enabled it to offer welfare benefits advice to people who lived, worked or studied in the London Borough of Camden. If they saw a client on a housing matter who was facing eviction and needed urgent advice about his or her benefits, whenever such advice as was available was too limited to resolve the issues properly they were forced to send the client elsewhere to try to get that advice if he or she did not qualify under Camden’s funding arrangements.

In Brighton the Brighton Housing Trust is now the only specialist provider of specialist housing advice. This means that clients have no choice, and there is also no other local provider to whom they can refer people when they do not have the capacity to accept them as clients or where a conflict of interest would arise.   Because so many housing matters have been taken out of scope for legal aid purposes they have to rely on non-specialist services to provide advice. As the Commission has already observed, early intervention can be hampered where there is no specialist advice available.

Z2K said that they frequently had to turn away clients in need of advice because they did not have sufficient resources to deal with the need, and there was often nowhere else to whom they could send them. They were also frustrated by the difficulty of finding competent housing lawyers who had the capacity to take on cases:

The good ones are often overburdened and there are some with legal aid contracts who are hopeless.

Almost a third of the legal aid areas in England and Wales have one or no local legal aid housing provider. There are currently no specialist legal aid housing law providers in Shropshire and Suffolk. Other providers, including Kingston upon Hull and Surrey, had no provider for a number of months, until the LAA took remedial action.

The Legal Aid Agency: the consequences of its bureaucracy in housing cases

The LAA’s increased bureaucracy, particularly in respect of means testing, is of particular concern to housing law practitioners.   The nature of the work they undertake is often very urgent. A client who is unlawfully evicted or made street homeless will often need very urgent assistance to ensure that he or she have a roof over their head that night.   Such clients are very unlikely to have access to sufficient proof of their means (including income and capital) in order to satisfy the evidential requirements to prove financial eligibility. Even if they can produce sufficient evidence, the forms are now so long that legal aid providers have to spend a considerable amount of time completing them. This burdensome exercise is therefore acting as a disincentive for providers to undertake legal aid work.

Shelter spoke of having to navigate the layers of bureaucracy required to obtain Legal Aid, while worrying that payment will be denied or, worse, that they would be out of pocket after having to pay for Counsel’s advice, and/or for surveyors, doctors or other experts. They have to make these payments upfront because any delay in preparation of their client’s case could prejudice that case or indeed, where time is of the essence, defeat it altogether. They said:

If the bureaucracy surrounding Legal Aid were reduced, providers might be encouraged to stay in, or come back in to, Legal Aid work. We would be able to take on additional cases – because we could devote the time saved to actual legal work rather than the business of form filling and financial data collection; and the next generation of housing lawyers would not be deterred from wanting to use their skills to the benefit of disadvantaged people by all the obstacles that the Legal Aid system places in their way.

 

 

[1] The LAA statistics show that the number of legal aid providers in the housing law field was reduced from 681 in 2012-13 (pre-LASPO) to 449 in 2016-17. Legal Aid Agency. (2017) Statistics January to March 2017, Table 9.4. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/631334/legal-aid-statistics-bulletin-jan-mar-2017.pdf

[2] Department of Communities and Local Government (DCLG). (2016) Rough sleeping in England: Autumn 2015. Accessed September 2017: https://www.gov.uk/government/statistics/rough-sleeping-in-england-autumn-2015

[3] Department of Communities and Local Government (DCLG). (2016) Statutory homelessness in England: October to December 2015. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/509763/Statutory_Homelessness_Statistical_Release_October_to_December_2015.pdf

[4] Ministry of Justice. (2016) Mortgage and landlord possession statistics: October to December 2015. Accessed September 2017: https://www.gov.uk/government/statistics/mortgage-and-landlord-possession-statistics-october-to-december-2015

[5] The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Schedule 1, para 35.

[6] See appendix 2 to the Submission of the Law Society to the Labour Party Review of Legal Aid, February 2016. Accessed September 2017: https://www.lawsociety.org.uk/policy-campaigns/consultation-responses/submission-to-the-labour-party-review-of-legal-aid/

[7] Accessed September 2017: http://lawforlife.org.uk/wp-content/uploads/2013/05/nef-socio-economic-benefits-of-law-centres-129.pdf

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