Sorting myths from facts over housing cases
The campaign against the LASPO Act highlighted where funding was being cut, but it is just as important for everyone to be aware of the areas where civil legal aid remains. In the first of a series of articles, Jan Luba QC and Sara Stephens explain what legal aid is still available in the housing field and how advisers might help their clients make best use of it.
Introduction
There is a widespread public perception (in some cases shared by advisers and community organisations) that legal aid is no longer available for anything other than criminal cases.
Legal Action’s new ‘Use it or lose it’ series will show that legal aid remains widely available in civil cases for many who need it, both to obtain advice and to take and defend legal proceedings. In this article, the authors use the term ‘legal aid’ to cover both legal help and civil legal aid representation, unless otherwise indicated. (Please see the online version of this article for links to all the relevant documents and websites:
www.lag.org.uk/magazine.)
Any reader of the most recent annual statistics on legal aid would be forgiven for thinking that the ‘housing crisis’ was over and that the need for legal advice or representation on housing problems was drying up.
1Legal aid statistics in England and Wales 2013–2014, LAA, June 2014. Those statistics showed that applications for civil representation certificates (to enable clients to take or defend housing cases) had collapsed from the already low figure of 14,401 in 2010/11 to only 11,642 in 2013/14.
2See note 1, Table 6.1. Likewise, the number of new cases in which legal help was given on housing matters (essentially, advice and assistance short of litigation) declined from 117,035 in 2010/11 to only 46,870 in 2013/14.
3See note 1, Table 5.1. It might be thought that this collapse in take up is the inevitable consequence of changes introduced in April 2013 by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. It is certainly true that the LASPO Act cut down the availability of legal aid in some housing cases and that the changes the Act made to rules about means and merits made it more difficult to obtain legal aid than it had been before. However, it is equally true that the bulk of what constitutes ‘housing work’ survived the cuts. As the authors explain below, for almost all the mainstream housing topics, legal aid remains available for those simply too poor to pay, which covers a large proportion of the likely client group. Indeed, there was an increase in the number of providers of legal aid services for housing cases in April 2013.
So, why has there been a collapse in demand? The authors’ experience, as individual practitioners and as active members of the Housing Law Practitioners Association (HLPA), suggests at least three reasons.
First, the government does not recognise legal aid for what it is: a vital public service and an essential arm of the welfare state. The government no longer publishes any literature about the availability of legal aid in civil cases and undertakes no promotional activity (for example, advertising) about this core public service. A cynic might suggest that a deliberate decision has been taken to broadcast nothing about – and do nothing to encourage access to – what remains of civil legal aid in the hope that an absence of demand will lead to even greater savings for the public purse than those achieved by the direct cuts. Of course, it must be conceded that those with acute housing problems who are also literate in English, have keyboard skills and can access the internet, could find out about legal aid through the GOV.UK web pages. Yet, for the rest, no effort is made to let them know what help remains available. For this reason, the burden has fallen on advisers themselves to publicise (at their own expense) the fact that this key public service remains available. The free display poster produced by the Legal Aid Practitioners Group (LAPG) with the Law Society and LAG is a fine example.
Second, the justified ferocity of the ‘Save Legal Aid’ campaigns of recent years – and their failure to stop or ameliorate the cuts to any significant extent – have left advisers, third-sector agencies and community representatives (including MPs and councillors) with a collective belief that civil legal aid has ‘gone’. The organisations that provide free assistance in cases for which legal aid is not available, like the Bar Pro Bono Unit, regularly find cases referred to them by front-line agencies and representatives where the client is in fact still entitled to legal aid.
Third, perhaps understandably, legal services providers have been cowered, by repeated and detailed audits and clawbacks by the Legal Aid Agency (LAA), into an evermore conservative approach to the work they will take on. Cases are often only being accepted where it is absolutely clear that the subject matter of the housing problem is within scope. Without very careful training and the provision of detailed and regularly updated information to front-line staff, such as receptionists and screening-interview caseworkers, there is a real danger that individuals in need will be told wrongly that help in their circumstances is ‘no longer available’ even when it is. In the early months of the new regime, legal services providers were able to double-check with the LAA about whether particular work was covered. However, that service ended, after only two months, in May 2013, but at least the answers given then by the LAA to the most frequently asked questions (FAQs) are still available.
4Frequently asked questions: civil legal aid reforms. Currently unavailable online – please see online version of this article for a link to the FAQs as soon as they become available. Attempts by HLPA to obtain clarification for housing providers from the LAA across a range of other housing-related issues have run into the sand.
In this article, the authors seek to do two things. First, to shatter a few of the most important myths about legal aid for housing cases (see box below). Second, to chart the main areas of unmet need in housing and show what help, through legal aid, is still available in this field.
Possession cases
There remains a huge and growing unmet need for legal representation of defendants in housing possession cases. For example, the number of landlord possession claims in county courts increased by 26 per cent from 134,961 in 2010 to 170,451 in 2013.
5Mortgage and landlord possession statistics quarterly: April to June 2014, Ministry of Justice statistics bulletin, August 2014. The vast bulk of these claims are:
•brought on the ground of rent arrears; and
•subject to a condition that possession will only be granted where it is reasonable for a possession order to be made.
Even if the making of an order would be ‘reasonable’, the tenant can avoid eviction if the court can be persuaded to postpone the possession date on conditions (sometimes called a ‘suspended’ order). There is, therefore, plenty of scope for successful legal representation in these cases and a textbook for legal aid advisers dedicated specifically to the topic.
6See Jan Luba QC, Derek McConnell, John Gallagher and Nic Madge, Defending Possession Proceedings, 7th edition, LAG, 2010.Yet, the total number of legal aid certificates sought for all types of housing cases in 2013 (see above) was less than ten per cent of the number of landlord possession claims alone. Given that almost all possession cases turn on the tenant’s difficulties with money, financial eligibility is unlikely to be the constraining factor preventing legal representation. Of course, many defendants are in the most acute need of help after a possession order is made, and at the stage where the landlord is seeking actually to evict. There is huge unmet demand at that latter stage too. In the second quarter of 2014, landlords applied for 18,781 warrants of possession and 10,000 evictions were carried out. With the benefit of legal advice and representation, very many of those evictions could have been halted by applications to stay or suspend enforcement.
The mythology of legal aid in housing cases
Myth 1: Housing cases have been removed from the scope of the legal aid scheme.
Fact: Legal aid remains available for most possession and homelessness cases, for some disrepair cases, to address unlawful evictions, and to bring judicial review claims against public authorities in relation to housing issues. For a ready snapshot of what housing work remains in scope under LASPO Act Sch 1, see the housing chapter in the Bar Council’s Changes to civil legal aid: practical guidance for the Bar (Version 3, published June 2014).
Myth 2: It is now virtually impossible to get immediate access to advice about legal problems relating to housing.
Fact: Civil Legal Advice (CLA), which is a free national advice service, is available to members of the public for help with housing and many other legal problems. It is open to telephone callers on 0345 345 4345 from Monday to Friday (9 am to 8 pm) and on Saturday (9 am to 12.30 pm). If English is not the caller’s first language, there is a free translation service. Those who would prefer not to telephone, or cannot afford the call charges, can fill in and send an online enquiry form and will then be contacted by a CLA adviser. If the need for legal advice goes beyond what the CLA can provide (for example, the client needs representation in legal proceedings) a referral to a face-to-face provider can be made.
Myth 3: There are now even fewer providers doing legal aid work in housing cases.
Fact: In April 2013, the number of legal aid providers holding contracts from the LAA to do housing work increased by around 100 to 609
.7Snapshot of civil contract holders at at June 2013, LAA. Myth 4: It has become impossible to find a face-to-face provider of legal services in housing cases.
Fact: A free website service enables individuals to identify solicitors (and others) offering legal aid services in the housing category either by location (for example, in a specific town or region) or by name of organisation. HLPA and other organisations maintain pressure on the LAA to ensure that the search tool is robust and contains accurate data.
Myth 5: Providers that are contacted often have to refuse help because they have ‘run out of matter starts’ in housing cases.
Fact: No legal services provider that has a contract to do housing work with the LAA needs simply to turn away a client with a legal problem about housing, and who is eligible for legal aid, even if their own quota of new legal help matter starts in housing cases has been exhausted. First, if the client is already a party to legal proceedings, or needs to take them, no ‘matter start’ is needed. The client can go immediately on to the civil representation form of legal aid. Second, if the provider’s quota of matter starts has been or is about to be exhausted, it can ask the LAA for more. The application is only likely to be refused if other legal services providers in the same area have significant numbers of unused matter starts under their housing contracts. Many providers with housing work contracts are members of e-mail alert schemes which enable them instantly to circulate details of clients they cannot assist to other providers in the area. Particularly good schemes are operated by the Lambeth and Southwark housing lawyer networks and by the national Housing and Immigration Group (HIG).
8To contact HIG e-mail: amy.clements@southwarklawcentre.org.uk. Myth 6: It is virtually impossible to work out whether the person needing help is financially eligible for legal aid with his/her housing problem.
Fact: Many housing clients will have very restricted incomes and little or no capital. So, issues over financial eligibility should be the exception rather than the rule. Where the position is not clear, two online systems are available for checking financial eligibility, one for advisers and the other for members of the public. Of course, it is crucial that the client is able to secure and supply the documentary evidence of his/her income and capital.
Myth 7: If you are being taken to court in a housing possession case, it is impossible to find out if anyone will be there to represent you.
Fact: The LAA funds a special scheme for at-court representation on housing possession days for unrepresented individuals at most county courts in England and Wales. There is a list of courts and the agencies that are funded to provide the scheme. Of course, no defendant should ever be referred to that list by an adviser or told simply to go to the court in the expectation that an adviser may be present. Any defendant seeking advice before the court hearing date should be referred immediately to a legal services provider with a LAA housing contract.
Although the point hardly needs to be stated, recent research has shown the significant difference in outcomes that can be achieved if defendants in housing possession claims are legally represented, even if only by a duty adviser at the door of the court.
9Information, advice & representation in housing possession cases, Professor Susan Bright, New College, University of Oxford and Dr Lisa Whitehouse, Law School, University of Hull, April 2014.Which possession cases can be funded?
The LASPO Act states that legal aid can be provided to a person in relation to:
•court proceedings for sale or possession of his/her home; and
•any eviction of that person (or others) from the home (Sch 1 Part 1 para 33(1)(a) and (b)).
Legal aid is therefore available in relation to possession proceedings, including warrants of possession, and also in relation to mortgage repossession (although mortgage cases are now classed as ‘debt’ rather than ‘housing’ cases, and therefore are subject to the telephone gateway). The gateway applies unless delegated functions can be used to grant emergency funding, as it applies only to legal help cases.
Legal aid is available as soon as the tenant receives notice of proposed proceedings, including a Housing Act (HA) 1988 s8 or s21 notice. Providers do not have to wait for proceedings to be issued before providing assistance, but any initial advice will be provided under legal help. A representation certificate can be applied for once proceedings are issued.
Before the introduction of the LASPO Act, a representation certificate could not be granted in relation to accelerated possession proceedings unless the case had been listed for an oral hearing. Getting an oral hearing without funding in place was obviously problematic as all work up to that point had to be carried out under legal help. However, there is nothing in the LASPO Act that stops a certificate being granted in relation to accelerated possession proceedings as soon as proceedings are threatened, as long as the client has a defence with a reasonable prospect of success. Funding is available because these are proceedings for possession of a person’s home.
Housing benefit issues in possession proceedings
Unfortunately, housing benefit (HB) advice, like other welfare benefit advice, is no longer within scope (LASPO Act Sch 1 Part 2 para 15). The LAA has made clear that even where the HB problem has caused the rent arrears which led to the possession proceedings, funding is not available to obtain or reinstate HB.
However, funding is available to seek an adjournment of possession proceedings to enable the client to resolve the HB issues him/herself.
10See note 4, FAQ 107. There are still a number of advice agencies offering welfare benefit advice through other funding sources, and obtaining an adjournment can often buy the client the time to work with an advice agency to resolve the HB issue.
Legal aid is also available to bring judicial review proceedings in relation to HB issues.
11See note 4, FAQ 108. The general exclusion of welfare benefit cases from scope does not apply to judicial review proceedings. Judicial review proceedings, including applications for interim relief, can be used to challenge unlawful HB decisions in order to resolve them while the possession claim is adjourned.
12See ‘Using public law arguments to resolve HB issues and possession proceedings’ by Desmond Rutledge, July/August 2014 Legal Action 27 for examples of the HB decisions that can be challenged by way of judicial review.Counterclaims
Legal aid can be granted for counterclaims in possession proceedings, even for matters that would otherwise fall out of scope. Examples include counterclaims for damages for the following:
•disrepair (see below);
•tort (for example, in respect of assault, battery or false imprisonment);
•trespass to personal or real property; and
•breach of statutory duty (LASPO Act Sch 1 Part 1 para 33(6) and Sch 1 Part 2 paras 3, 6 and 8).
What about the duty schemes?
Anyone who has been involved in a county court possession day duty scheme will be aware of the limitations in the assistance that can be provided to tenants. Any tenant who is on the possession list for that morning or afternoon session can ask to see the duty adviser if s/he does not already have representation. The list often contains up to around 30 cases, and the duty scheme can be a busy morning or afternoon. Advisers will have limited time to obtain instructions and try to negotiate with a landlord before going before the judge. Tenants are unlikely to arrive at court with the full evidence of any potential defence or counterclaim. Often, the best that can be obtained is an adjournment in order for the tenant to file a defence or counterclaim or to investigate any HB issues. The duty scheme is for one-off advice and assistance which cannot thereafter be provided under the duty scheme to assist the tenant in investigating or preparing his/her defence or counterclaim. The schemes are designed to be a last line of defence for vulnerable tenants without representation (and are very effective as such) but are no substitute for ongoing assistance and full representation.
Homelessness cases
Another huge area of unmet housing need relates to homelessness. At one level, there should be no need for legal advice because every local housing authority in England and Wales has a legal obligation to provide advice and information to the homeless and about the prevention of homelessness (HA 1996 s179).
However, not all those applying for help end up securing the housing assistance they most seek. For example, in the first three months of 2014, less than half of the 27,210 decisions made by local housing authorities in England resulted in a finding that the applicant was owed the main homelessness duty.
13Statutory homelessness: January to March quarter 2014 England (revised), Department for Communities and Local Government (DCLG), July 2014. So, about 14,000 adverse decisions are being made – in England alone – every 12 weeks. Virtually all of those decisions carry a right to a legal review (under HA 1996 s202(1)), and if that does not produce the correct result, a right of appeal to the courts on a point of law under the HA 1996 s204. Those decisions which do not carry such rights can be the subject of judicial review proceedings (see below). Providers will also be aware of widespread ‘gate-keeping’ practices, which will not be included in the above figures as the local housing authorities prevent the potential applicant (unlawfully) from even submitting an application for assistance in the first place.
However, as the legal aid figures at the beginning of this article reveal, these rights to dispute homelessness decisions are being taken up only in a minority of cases. The reason for diminished uptake of legal aid in these cases is unlikely to relate to financial eligibility: most clients will have little or nothing by way of financial resources.
What homelessness cases can be funded?
Legal aid can be provided to a person who is homeless, or threatened with homelessness, in relation to the provision of accommodation and assistance for that individual under HA 1996 Part 7 (Homelessness) (LASPO Act Sch 1 Part 1 para 34(1)(b)). Homelessness and threatened with homelessness have the same meanings as used in HA 1996 s175 (LASPO Act Sch 1 Part 1 para 34(3)). This includes the following:
•advice in relation to making an application; challenging a failure to accept an application;
•applying for accommodation pending a decision;
•requesting a review of a decision (including a review of suitability of accommodation);
•challenging a refusal to provide accommodation pending enquiries or pending review; and
•bringing an appeal to the county court (including an appeal from refusal to accommodate pending an appeal).
Advice is also available in relation to the provision of accommodation for asylumseekers (LASPO Act Sch 1 Part 1 para 31).
14See also note 4, FAQ 109.Social housing allocation
There were 1.69 million households on local authority waiting lists on 1 April 2013, of which 709,000 were in the statutory reasonable preference categories.
15Local authority housing statistics: April 2012 to March 2013 England, DCLG, December 2013. In contrast, in 2012/13 there were only 134,700 lettings of local authority housing in England. It follows that huge numbers of negative decisions about requests and bids for housing are being made every year. In most cases, the problem is not a legal one but an issue of demand versus resources. However, the minority of cases, those with a legal dimension, involve a large number of applicants even if but a modest percentage of the total. This is likely to be a growing area of need for advice and representation in light of the changes being made to local allocation schemes following the Localism Act 2011.
The relevant legislation requires that local housing allocation schemes offer a right of review (HA 1996 Part 6). Those who remain dissatisfied may seek a judicial review (see below) and will need legal aid to do so.
What allocation cases can be funded?
Legal aid is available in relation to the provision of social housing accommodation under HA 1996 Part 6, if the client is homeless or threatened with homelessness (LASPO Act Sch 1 Part 1 para 34(1)(a)).
The FAQs document (see above) makes clear that allocation cases are out of scope unless the applicant can be classed as ‘homeless’ or ‘threatened with homelessness’ within the meaning of HA 1996 s175.
16See note 4, FAQ 77. As long as the client falls within those definitions, legal aid is available. Section 175(3) provides that a person is homeless unless s/he has accommodation that it would be reasonable to continue to occupy. Therefore, any client who is in unsuitable accommodation and requires assistance in his/her application for social housing, including a transfer to alternative suitable social housing, should fall within the definition of ‘homelessness’ and is within scope.
The legal help matter start code for allocation and transfers was removed in April 2013, so providers should use the homelessness code. The LAA has indicated that it sees no problem in providers opening two separate legal help files, both using the homelessness code: the first to advise in relation to a homelessness application and the second to advise in relation to an allocation application, provided the general rules regarding opening separate matter starts for the same client can be satisfied.
Judicial review will be available to challenge a local housing authority’s decision (or failure to reach a decision) in relation to the allocation of social housing, and legal aid is available for such cases (see below).
Disrepair cases
Despite some improvement in recent years, particularly in the social housing sector, there is still a vast swathe of tenanted housing which is in very poor condition despite the fact that most tenants have the legal right to expect their landlords to carry out repairs.
17See Jan Luba QC, Deirdre Forster and Beatrice Prevatt, Repairs: tenants’ rights, 4th edition, LAG, 2010. The latest statistics show that, in England alone, 4.9 million dwellings (22 per cent of all homes) failed to meet the decent homes standard in 2012.
18EHS Bulletin Issue 11: English Housing Survey Bulletin, July 2014.Of course, in the absence of security of tenure in the private rented sector, many tenants are unwilling or unable to take up their rights for fear of upsetting the landlord. Yet others simply have no choice – given the severity of the problems faced – or can assert their rights with impunity either in the face of action taken by their landlords (for example, for rent arrears) or because they have left the property. The unmet demand for legal advice and representation in disrepair cases is huge, but the number assisted remains tiny.
What disrepair claims can be funded?
Legal aid is available in relation to the removal or reduction of a serious risk of harm to the health or safety of an individual (or a relevant member of that person’s family) where:
•the risk arises from a deficiency in a home;
•the home is rented or leased from another person; and
•the services are provided with a view to securing that the other person makes arrangements to remove or reduce the risk (LASPO Act Sch 1 Part 1 para 35(1)).
The definition of ‘harm’ includes temporary harm and the definition of ‘health’ includes mental health (LASPO Act Sch 1 Part 1 para 35(4)). The Lord Chancellor’s guidance under section 4 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 paras 12.9 and 12.10 provide a non-exhaustive list of the factors to be taken into account when deciding whether the ‘serious risk’ requirement is met.
There are no specific evidence requirements to be satisfied in relation to those criteria.
19See note 4, FAQ 79. It may be helpful to have a letter from a GP or health visitor, or photographs of the disrepair, but there is no requirement to have any such evidence before opening the file (such as there is with domestic violence in family law cases). Legal aid is available, so long as there is a credible allegation of serious risk, to enable providers to obtain the necessary evidence, including expert reports (
Lord Chancellor’s guidance paras 12.6–12.8). Unfortunately, legal aid funding is only available for the steps necessary to obtain an injunction to remedy the disrepair and not for any associated claim (as opposed to counterclaim) for damages.
20See note 4, FAQ 81. Providers will need to have alternative funding in place in respect of any damages claim. Legal aid funding will cease to be available once the risk of harm has been removed or reduced rather than when the repairs are complete or the case is at an end.
Providers will need to be able to explain to the LAA why the disrepair case was unsuitable for funding under a conditional fee agreement (CFA) (Civil Legal Aid (Merits Criteria) Regulations (‘the Merits Criteria Regs’) 2013 SI No 104 reg 39(b)). This is an objective test rather than a question of whether or not an individual provider would offer a CFA (Lord Chancellor’s guidance para 7.17). In practice, legal aid will be available for cases meriting interim injunction applications to deal with urgent disrepair, which by their nature are likely to satisfy the above criteria, but where any damages claim is likely to be minimal.
Alternatively, providers could obtain legal aid for part of the case, and have a CFA or other funding arrangement in place for the damages claim and for any element of the claim that falls outside of scope. Providers should be careful in ensuring that the case is within scope, if they do not have alternative funding arrangements in place, to ensure that the indemnity principle is not breached.
21See note 4, FAQ 81, which makes clear that a provider cannot claim for any work relating to the damages element of the claim.Cases of statutory nuisance, under Environmental Protection Act (EPA) 1990 Part 3, are also within scope if they meet the above criteria.
22See Category definitions 2013, para 28(e) and see note 4, FAQ 104. Given the nature of these cases – the premises must be ‘prejudicial to health’ – they are likely to meet the criteria.
However, only the legal help form of legal aid is available in EPA cases, and then only up to the point at which the tenant issues the proceedings in the magistrates’ court. Alternative funding can be used to pursue the private prosecution from that point, including proceeding under a CFA. There is no damages claim in such cases (although compensation may be awarded if the landlord is found guilty).
What disrepair counterclaims can be funded?
Counterclaims for disrepair are within scope. These include counterclaims for damages for the disrepair.
23See note 4, FAQ 83. Therefore, legal aid can be obtained to bring a disrepair counterclaim in possession proceedings. However, any application for legal aid needs to be worded carefully because funding will not be granted where a tenant has ‘provoked’ possession proceedings by deliberately withholding rent in order to obtain legal aid to bring a counterclaim (Merits Criteria Regs reg 11(6) and
Lord Chancellor’s guidance para 7.4(c)). In practice, there has been no evidence of providers having difficulty in obtaining legal aid for disrepair counterclaims in possession proceedings.
Disrepair counterclaims can be raised even after a possession order has been made, including at eviction stage (Rahman v Sterling Credit Limited [2001] 1 WLR 496, CA) and even where there have been numerous applications to stay execution previously (Midland Heart Ltd v Idawah [2014] EW Misc B48).
Unlawful eviction
Perhaps the most acute form of need for legal services in housing is that of the victims of unlawful evictions. These are often sudden and sometimes accompanied by violence. Unlawful eviction is both a criminal and civil wrong, and the available penalties and remedies are – if good legal advice is secured – both swift and salutary.
24See Andrew Arden QC, Rebecca Chan and Sam-Madge-Wyld, Quiet Enjoyment: Arden and Partington’s guide to remedies for harassment and illegal eviction, 7th edition, LAG, 2012.There is no centrally collected data about how many households in the country are subject to illegal eviction each year. However, the number will not be as insignificant as the number of prosecutions taken and civil claims brought. Here, again, legal aid is available to the victim and can provide real practical help.
What unlawful eviction claims can be funded?
The LASPO Act’s definition of ‘eviction’ (as set out above in relation to possession cases) includes unlawful eviction claims. Unlike disrepair claims, damages claims in relation to unlawful eviction remain within scope.
25See note 4, FAQ 85. Furthermore, certain areas that are generally out of scope are not excluded where assistance is being provided in relation to unlawful eviction. These services include claims in tort in respect of assault, battery or false imprisonment, claims in relation to damage to property and claims in tort in respect of breach of statutory duty (LASPO Act Sch 1 Part 1 para 33(6)(b) and Part 2 paras 3, 6 and 8). Given the nature of unlawful eviction cases, it will usually be appropriate to use delegated functions to grant emergency legal aid to the client, thereby avoiding using up matter starts.
Judicial review cases
Public bodies make a wide range of decisions about housing cases, going well beyond the categories described above. For example, they make decisions about discretionary housing payments, disabled facilities grants, issues relating to Gypsies and Travellers, and a good deal more. Dissatisfied applicants, having exhausted any appropriate complaints procedures (or found them wanting) in such cases, can challenge the decision-making through the procedure of judicial review. However, very few housing cases seem to reach judicial review beyond the major classes of case described above. This should not be because of any shortage of availability of legal aid.
What claims can be funded?
Legal aid remains available for judicial review cases (LASPO Act Sch 1 Part 1 para 19). Only judicial review cases in relation to ‘housing’ issues will fall within the LAA housing contract.
26Category definitions 2013, para 13. Judicial review in relation to other matters will require a legal aid housing provider to have a public law contract or to make an effective referral to a different provider who has one. A practical problem for many providers is that there is now no guarantee of payment for representation certificate work in those judicial review cases in which proceedings are issued unless permission is granted (Civil Legal Aid (Remuneration) Regulations 2013 SI No 422 as amended by the Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014 SI No 607). However, legal help and legal aid for case investigation are not hampered by that qualification.
What about urgent judicial review cases?
Where a case is urgent, emergency funding can be granted using ‘delegated functions’ (previously known as ‘devolved powers’).
272013 Standard Civil Contract Specification, para 5.2. Delegated functions cannot be used in relation to judicial review proceedings, save for homelessness cases, so an emergency application to the LAA would need to be made in many cases.
28See note 27, para 5.3.Getting clients and making effective referrals
Given the lack of publicity about the extent of the availability of legal aid and widespread misunderstanding in community organisations and agencies, many legal aid housing providers are reporting a reduction in new enquiries. However, they need not simply wait for new clients. Many potential clients will be in contact with local charities, food banks, support networks, etc. Building up local connections and ensuring that those local agencies are aware legal aid is available, and that providers in the area are willing and able to take on cases, can be a good way of getting new clients. It can also build up good relations with local agencies that may also be able to provide support and assistance for clients, including resolving welfare benefit issues which are no longer in scope. Generally publicising the availability of legal aid in the locality can also be helpful. Local GP surgeries, libraries and courts could be asked to display materials such as LAPG’s poster (see above).
It can also be helpful to establish which other housing legal aid providers are in the locality, and to build up good relations with them, so that effective referrals can be made between providers when one provider is less busy than another. When making a referral, providers should be clear what the client’s key issues are in order to enable another provider quickly to grasp that the case is within scope and then provide assistance. This is more likely to lead to a successful referral.
The practicalities of dealing with the LAA
Initial considerations
When opening a legal help matter, a careful file note should be included explaining why, in the provider’s opinion, the case falls within the scope of the LASPO Act. The LAA has provided very little guidance, which has caused some providers to take a conservative approach to the interpretation of scope. However, the LAA has indicated that so long as the provider can justify why a case is within scope, the agency will usually accept this. It is worth bearing in mind that LAA caseworkers and contract managers have not been provided with further guidance either, and are simply looking for proof that the provider has considered – and is satisfied that the case falls within – scope.
Conditional fee agreements
As noted above, providers must satisfy the LAA that the case is not suitable for a CFA in respect of all cases. The application form for legal aid has now been amended to require providers to demonstrate that the case is not suitable for a CFA. In practice, the LAA has refused applications for legal aid in housing cases that are clearly unsuitable for a CFA. Providers should explain why a case is unsuitable for a CFA. For example, make clear that the case is a non-damages claim (if appropriate), so there will be no damages from which to deduct a success fee or insurance premium (in the unlikely event that insurance can be obtained).
Challenges
If the LAA refuses funding for a case, on the basis that it is not within scope, there is a right of review (Civil Legal Aid (Procedure) Regulations 2012 SI No 3098 reg 44).