We are grateful to David Gilmore for alerting us to the fact that the LAA has changed an answer to a ‘frequently asked question’, in relation to the evidence required to demonstrate that threatened possession proceedings are in scope.

The question was: Do providers have to wait for housing possession proceedings before providers can grant legal aid?

 In the answer dated 12/04/13 the LAA stated:

97. Providers do not need to wait for housing possession proceedings to be issued before providing advice under Legal Help, as long as it appears proceedings will be issued unless there is some intervention. An application for Legal Representation will not be granted before there are proceedings in existence.

However, the answer to the same question (re-numbered 98) on 19/04/14 and still current as at 29/05.13 was:

98. Providers do not need to wait for housing possession proceedings to be issued before providing advice under legal help, as long as the client has received formal written notification that [our emphasis] proceedings will be issued (such as a section 8 or section 21 notice) unless there is some  intervention. An application for legal representation will not be granted before proceedings have been issued at court by the opponent.

What does this mean?

There is no other guidance we can look at, which is not helpful. However, if we go back to the Act – schedule 1 para 33 (1) (b) is widely drafted:

Part 4 of Schedule 1 (definitions), states that "orders" include actual and contemplated proceedings. When proceedings move from the theoretical to the contemplated is not specified. However, we can see that the Legal Aid Agency has a decided preference for written evidence, not necessarily something formal like a letter before action or a notice of seeking possession but at least a letter from the landlord saying "if you don't pay the rent I'll evict you / take you to court".

The problem is that not all tenants are entitled to a written notice and not all landlords will put threats to evict in writing; but we have been warned – advice must be in relation to a realistic prospect of eviction, advice on arrears in themselves is outside scope. If you are advising someone without written evidence, you are going to have to make very careful and thorough notes of your justification as you will probably have a battle on your hands when it comes to an audit - and no -one wants to be in that position. The prudent/cautious will only provide advice when the client has written evidence or wait for proceedings to be issued.