Chris Minnoch argues that while the government’s proposals for Housing Possession Court Duty Schemes have some merit, they ignore the key issue of sustainability.
On 31 May 2022, the government published its response to, and policy proposals arising out of
, the Housing legal aid: the way forward
consultation. It ran from 25 November 2021 to 20 January 2022, drawing responses from representative and membership bodies, providers, policy groups, local authorities and the judiciary. In short, the consultation sought to do two things: introduce measures to improve the financial viability of existing Housing Possession Court Duty Schemes (HPCDSs); and create a new ‘early legal advice’ arm to the service to resolve possession cases at the earliest stage possible, thereby improving outcomes for claimants, defendants and the courts. The second of these twin objectives has been dubbed the Housing Loss Prevention Advice Service (HLPAS).
This consultation built on a previous consultation, Housing Possession Court Duty Scheme: towards a more sustainable service
, which ran from 4 October 2019 to 3 January 2020 and proposed a range of measures to shore up the financial viability of HPCDSs. Those proposals were broadly sensible and the profession was generally supportive. However, implementation was paused when the pandemic struck and alternative measures were put in place to protect tenants and mortgagors from eviction. On the resumption of possession proceedings, some of the measures floated in 2019 were introduced as temporary changes to HPCDS contracts in an attempt to provide some degree of financial stability after a long period of virtually no income for providers.
Before looking at the government’s latest proposals, you might be wondering why such a small (albeit vital) element of the legal aid scheme has received attention from the Ministry of Justice (MoJ) when much larger components remain in crisis. There are a number of possible answers to this. The first is inherent in the question itself – at its peak in 2014/15, HPCDS spend represented just half a per cent of the civil legal aid budget.1Legal aid statistics England and Wales tables Oct to Dec 2021, MoJ/Legal Aid Agency (LAA), 31 March 2022, table 1.2.
Therefore, even progressive spending proposals make virtually no difference to the MoJ’s budget, and can be introduced without attracting the ire of legal aid’s plethora of noisy detractors and critics. Second, the government has, quite rightly, consistently recognised HPCDS services as a very effective and very cheap way to prevent homelessness. Third, the government also recognises HPCDS services as a gateway into other forms of specialist advice and support for clients who often cannot or do not engage with formal legal advice until they are threatened with eviction. Finally, the LAA has had to run dozens of tender exercises in recent years as housing providers have collapsed or turned away from legal aid and handed back their HPCDS contracts. It has even had to experiment with remote provision, such is the difficulty of procuring these contracts in a legal aid landscape littered with advice deserts and providers on the brink of survival.
The latter point is why I am so hesitant to welcome the latest proposals, which, on the surface, appear to be positive and indeed may even represent the first small shoots of recovery sprouting from the arid legal aid landscape: like most recent MoJ initiatives, the proposals, however positive, tinker around the edges without addressing the central reason why services are failing and clients are missing out.
After what appears a genuine attempt by the MoJ to listen to feedback, the final policy positions (set out at para 212, page 41) are:
Remodelling the delivery of the HPCDS to become a new Housing Loss Prevention Advice Service (HLPAS), incorporating both the existing service of advice and representation at court but also early legal advice before court.
In theory, this can only be a good thing. Although not explicitly set out in the consultation response, the consultation document also noted that HLPAS will not be a means-tested service, which is positive and removes the iniquity and delay inherent in means-testing. The government has also conceded that clients should be able to access early legal advice once they are served with notice that the landlord will be seeking possession (rather than once they receive notice of a possession hearing). In practice, however, much will depend on how the LAA constructs contracts and whether the remainder of the proposals below are implemented effectively. Ultimately, the success of this new element of the service will almost certainly rest on the willingness of legal aid practitioners to continue to go the extra mile for inadequate pay.
Expanding the scope of legal aid so that HLPAS providers can offer early legal advice on social welfare law matters to individuals who have received a notice seeking possession of their home. This will be paid at the £157 fixed fee for legal help, but with an escape threshold set at three times the fixed fee.
We are pleased that the government listened to concerns about the lack of an escape fee mechanism. I remain convinced that hourly rates are far too low, so escape mechanisms just perpetuate economic unviability. However, in the absence of a fee increase, at least providers will be able to claim for the actual time spent on more complex cases. An expansion of scope is always welcome, but do providers have the expertise in-house to deliver a more holistic service? Some do, predominantly those in the not-for-profit sector, albeit because of other, already over-committed grant-funded services. Providers may use agents to deliver benefits and debt advice, but I can’t see how this will be practically possible or indeed affordable with such low fees.
Contracting a panel of legal experts to assist and upskill providers where they lack expertise on social welfare case matters.
This proposal seeks to address the significant concern raised by providers about the loss of capacity and expertise within the housing provider base to deliver benefit and debt advice – a direct result of scope cuts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). While the detail is scant, a return to something modelled on the Legal Services Commission’s (LSC’s) specialist support contracts must be a welcome proposal, but I don’t think it adequately addresses the central issues of capacity or expertise in what are complex areas of law. Legal Aid Practitioners Group (LAPG) argued for seed funding to enable housing providers to recruit and/or train specialists in these areas, or an adoption of the ‘crisis navigator’ model used successfully by a number of Law Centres.
Piloting the grant funding of a set number of legal aid training contracts for HLPAS providers.
This is another very interesting initiative and one we have been asking for since the abolition of the LSC training contract grant scheme. The consultation impact assessment
sets out a little more detail on how these grants might operate, with up to 20 placements a year, each to the value of £50,000 over two years to cover salary and qualification exam costs. While a useful subsidy, this is less than what we would estimate as the real cost of training a new fee-earner, and 20 grants is only one for every three HPCDS providers. One can only hope that this pilot proves its value quickly and can be expanded, not just within the context of HLPAS services, but also – as hinted at within the consultation response – to all areas of civil legal aid.
Contracting by courts, rather than larger geographical areas, with one HLPAS contract awarded for each court.
A sensible move, with the majority of respondents agreeing that a focus on localised provision should ensure continuity of service for clients and contracting with providers who can utilise their local networks and knowledge to achieve better outcomes for clients.
Allowing providers to claim for the court duty fee in addition to a legal help fee for follow on work.
This is a welcome change, notwithstanding that both the HLPAS and legal help fees remain too low.
Introducing a set attendance fee for all schemes, replacing the existing nil session payment.
This effectively doubles the fee that can be claimed for attending court if no clients appear or need assistance. Another welcome change, but it probably still does not reflect the cost of a fee-earner attending court for a minimum of half a working day.
Within the consultation response (at para 38, page 12) was a welcome acknowledgement from government of particular concerns about the extension of fixed recoverable costs (FRCs), ‘specifically on housing legal aid providers’. A decision has been taken, therefore, to delay the extension of FRCs to legally-aided housing possession cases for two years. The Housing Law Practitioners’ Association, LAPG, Shelter and the Law Centres Network have been lobbying for housing cases to be completely exempt from FRCs, so this is a step in the right direction. However, the government has failed to acknowledge that claims involving disrepair and unlawful eviction (etc) are the real crux of the issue. Further, the worrying assertion that the delay will ‘allow the market sufficient time to recover after the halt on possession proceedings during the pandemic and for the changes coming out of this consultation to deliver the intended benefits’ demonstrates an alarmingly myopic viewpoint.
Much like the Early Legal Advice Pilot (ELAP),2See May 2022 Legal Action 9.
we have concerns that positive proposals may be diluted by poor design and a lack of understanding about the interconnectivity of each element of the legal aid scheme. ELAP is referred to in the consultation response as a parallel project to test the impact of early legal advice to inform the MoJ’s future commissioning strategy (para 33, pages 11–12, and para 83, page 19). The HLPAS model is an improvement on existing provision and has the potential to demonstrate the benefit of frontloading investment in legal advice. However, the ability of both initiatives to meet client demand and produce useful data will be limited by the bleakness of the legal aid macro-environment: a 31 per cent reduction in the number of housing providers between April 2012 and September 20213HC Written Question UIN 51685, 20 September 2021; answered 23 September 2021.
and a 49 per cent reduction in income that providers have derived from housing cases between 2009/10 and 2019/204Legal aid statistics England and Wales tables Oct to Dec 2021, tables 5.3 and 6.5.
are just two telling statistics that point to a sub-sector in terminal decline.
Overall, these proposals are yet another example of an unwillingness within the MoJ to make the sort of system-wide changes that are necessary to create a viable legal aid service. ‘Unwillingness’ is probably unduly pejorative – the civil servants with whom I work have the willing, but they are constrained by the political toxicity of legal aid that also consigns much of the justice system to the bottom of the Treasury’s spending priorities list. After decades of regressive policymaking and fee cuts, these proposals are, relatively speaking, a very positive step forward. But they will not achieve the government’s stated objectives because they do not address the core issue: HPCDS services cannot be sustainable if the housing contracts to which they are aligned remain wholly unsustainable. The HPCDS/HLPAS services do not, and cannot, exist in a vacuum, and without viable providers and profit-making services sitting behind them, they will continue to fail.
So, what happens next? The government intends to introduce legislation to implement the proposals during summer 2022 (changes to LASPO’s scope and to the underlying regulations). The service is expected to commence at the end of April 2023, with current HPCDS contracts recently extended to 29 April 2023 to enable this. Following amendments to the legislation, the LAA will consult with representative bodies on the new contract and then run a tender exercise. Throughout this process, LAPG and other contract consultee bodies will try to ensure that the proposals are implemented as effectively as possible, while continuing to make the point that so much more needs to be done if this new service, and the civil legal aid contracts on which it relies, are going to be anything approaching sustainable in the years to come.