Social Housing Speed Read – Legal Aid in housing cases

The Government’s March 2017 Consultation Proposal can be found here.

The Government’s August 2017 Consultation Response Paper can be found here.

The Judgment can be found here.

What’s new?

More than 100,000 people are on council housing lists in the North of England, and the availability of civil legal aid is becoming increasingly scarce; the rise in housing advice “deserts” in certain parts of the country has been well documented. Consequently, access to justice is increasingly in short supply, particularly in relation to housing possession claims.  Tenants acting in person can delay the Court process and vulnerable people can be left with no effective advocacy support.

In March 2017 the Government completed a consultation paper seeking to address the availability and provision of emergency free legal advice, assistance and advocacy to people at risk of losing their home. Such services are covered under the Housing Possession Court Duty Scheme (the Scheme). Funding is provided by legal aid delivered through the Legal Aid Agency (LAA) with individual providers entering into contracts with the LAA.

Those who benefit from the Scheme are often presented to be vulnerable, meeting the protected characteristics set out in the Equality Act 2010, and face possession proceedings due to anti social behaviour, rent arrears or mortgage debt. Eviction is a real possibility and a large network of independent law centres predominantly delivers the urgent support needed to facilitate these free of charge legal services under the Scheme across England and Wales.

The Government’s proposed changes 

In August 2017, following a response to its March consultation paper and (which generated significant opposition), the Government decided to consolidate the current 113 duty desk schemes into 47 schemes, each covering much larger geographical areas. It also chose to move from law centres (or providers of services under the Scheme) contracting under a fixed fee arrangement, similar to other legal aid provisions, to a price competition tendering process between bidders.

The Government justified this decision by arguing small schemes were already proving unsustainable and providers were not earning enough money. However, the majority of consultee responses to its March consultation paper overwhelmingly disagreed with this proposal. It was alleged by many commentators that the Government failed to make an investigative enquiry as to whether larger contracts were more financially sustainable than the current framework. In theory, larger schemes appear logical. Increased income would provide an incentive to providers to remain within the system and, with a larger geographic area, providers could use agents to perform Scheme services keeping their own travel costs down.

However, larger contracts are inundated with financial difficulties and are only viable where providers would be more financially secure. In reality, it is likely to cost more to administer and an agents’ fees would mitigate any benefit of reduced travel expenses, reducing a provider’s overall profitability by significantly increasing running costs.

Additionally, it was argued by some respondents that the Government’s ‘bigger is better’ approach had little consideration for the vital follow-up (commonly known as ‘wrap-around’) services, including continued housing advice, for vulnerable clients offered by providers with the help of volunteers or funded through charitable actions.

The Judgment in R (Law Centres Federation Ltd) v. Lord Chancellor 

In response to the Government’s decision, the Law Centres Federation Ltd (the Claimant) asked the Court to quash the Government’s decision to proceed with the tender as planned. The Claimant argued that: (1) the Government rearranged the Scheme based on questionable, untested assumptions regarding the Scheme’s current financial viability; and (2) the Government acted without proper analysis of its effect on people for whom the service is intended.

The Judge upheld both claims:

• The Judge concluded, at paragraph 73 of the judgement, that the Government did not meet its duty (known as the Tameside duty) to properly acquaint itself with relevant material. The Judge continued, at paragraph 93, that “this decision was one that no reasonable decision-maker could reach on the state of the evidence that LAA had gathered… no data was available to connect small schemes with lack of viability”.
• The Judge was similarly critical of equalities implications, writing (at paragraph 104) there was “a real risk that… clients using the HPCD [Scheme] service will no longer have the same access to the ‘wrap around’ services that are not covered by Legal Aid and which may make all the difference to whether they end up homeless and destitute”.

In conclusion, this is an important Judgment for those who rely upon Scheme services but also for registered providers and local authorities across the country whose applications to the Court may be impacted by the Government’s position on the issue. On the ground, if the Schemes do continue to result in a lack of legal advice available for Defendants, local authorities and registered providers may find that proceedings may become more drawn out, expensive and less predictable if Defendants are unrepresented.

If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.