Written evidence from Shelter

Introduction

We welcome the opportunity to respond to the Justice Committee’s inquiry into the future of legal aid.

Shelter’s legal services employ 46 solicitors, 25 advisers and 30 support staff in 16 offices around England and Scotland to give advice and provide legal representation to the public. Our evidence is concentrated in the areas of housing and homelessness casework and associated matters, in which we have wide-ranging experience. Housing law is complex, and successive governments have continued to add to or amend existing legislation. Consequently, it can be challenging at the best of times for our specialist advisers to advise people on their rights. It is often impossible for individual residents, especially when they have complex needs, to understand the law and prepare their own case when trying to preserve their home or on finding themselves homeless. People need advice on what they need to do to bring or defend a claim, and they need active assistance in navigating their case from start to finish. Rights mean nothing if people are unable to enforce them.

The Covid-19 crisis has revealed just how vulnerable so many members of society are: vulnerably housed, precariously employed and inadequately remunerated. As we teeter on the edge of a global recession, it is more important than ever that we have a robust legal system to underpin our safety net, ensuring that people can access and enforce their rights when they need them most.

Our submission to this inquiry sets out several recommendations of the changes required to ensure access to justice and a functioning civil legal system.

Recommendations:

 

 

 

How LASPO has impacted access to justice

Legal Aid is crucial to prevent and resolve housing and homelessness issues. But the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has had the effect that fewer households can get timely advice to enable them to avoid a crisis. An increasingly crisis-driven approach to housing advice in general and the removal from scope of welfare benefits is leaving people without the help they need to save their home or to obtain accommodation when homeless. The lack of early prevention work adds to the cost and burden of the system, increasing costs to the wider public sector and causing additional, unnecessary distress to individuals and families.

We have long called for the restrictions brought in by LASPO to be lifted. Our submission to the Ministry of Justice’s Post-Implementation Review sets out extensive evidence about the damage this legislation has done to access to justice.

In order to ensure that people have access to justice, the current scope restrictions introduced by LASPO must be removed or substantially relaxed. In housing cases, the end result would be that more people would preserve their homes or be assisted into suitable accommodation when homeless. There would be reduced cost to the courts and the justice system, and huge savings to the public purse arising out of families or individuals keeping a roof over their heads, with all the attendant benefits for the health, education and criminal justice system. Citizens Advice research estimates that for every £1 spent on legal aid for benefits advice, the state saves £8.80.[1]

 

Recommendation: restore legal aid for assistance with housing benefit, universal credit or other benefit problems

 

Recommendation: restore legal aid for matters of disrepair and unfitness, including damages-only claims

 

Recommendation: restore legal aid to deal with general debt issues relating to affordability of accommodation

 

 

The role of the Legal Aid Agency

The primary role of the Legal Aid Agency is to ‘provide civil and criminal legal aid and advice in England and Wales to help people deal with their legal problems’. To that end, it goes without saying that the LAA should be consistent and competent in its decision making. However, in our experience, decisions are all too often inconsistent, arbitrary and irrational. While such decisions are often overturned on appeal, the initial refusal causes frustration and additional work for the solicitor and further unnecessary anxiety to the client.

The role of the LAA should be to facilitate provision of legal advice and representation for those who need it most. Too often however the Agency acts as a further barrier to access to justice. Financial eligibility challenges are conducted in an inquisitorial way, with the emphasis seemingly being on trying to find reasons why an applicant is not eligible. This is particularly frustrating for homeless clients who are obviously destitute. The role of the LAA should be to help these people, not subject them to further stress, anxiety and bureaucracy.

“I have a client who is 83 years old, has dementia, lacks mental capacity …we couldn’t get very thorough evaluation of means at the start of the case because of her lack of capacity, but the LAA accepted what we had. They still insisted on doing a means reassessment a year later… we could not get any new financial information but as far as we and her social worker knew her means had not changed and asked if they still wanted me to do the means reassessment. They did and I had to spend time completing the form (copying the info from last year’s application), uploading last year’s information, getting written confirmation from the social worker that she was not aware of any change in income – it was a total waste of time.

I know there has to be checks and audits to ensure public money is being spent on those who are eligible, but money is wasted by doing these ridiculous box-ticking exercises.

- Shelter solicitor, South-West

“The LAA’s role has been one of a culture of refusal.  The level of hoops to jump through in order to obtain funding are unsustainable for most providers.  Recently I had an application for an ASB injunction refused.  The caseworker said that the matter could be dealt with by way of undertakings, demonstrating a fundamental misunderstanding of how the law works in general and in particular what such an action would mean for the client.  I had to go to an appeal (refused) then independent adjudicator (overturned).  I then had to argue with them that the client’s legacy Income Support was a passporting benefit, because the LAA kept saying that the DWP said she was not on benefits (I had provided 2 letters confirming her benefit).”

                                                                                                  - Shelter solicitor, North-East

 

A culture of ‘no’

Our legal aid practitioners have reported that LAA decision makers are taking much longer to make a decision and employing an unnecessary level of bureaucratic scrutiny with little value added. These delaying tactics force us to choose between working ‘at risk’ or turning our clients away.

 

The clients we assist have already experienced an injustice by the time they approach us for help. Our practitioners increasingly feel that the first unnecessarily difficult barrier to overcome is securing agreement from LAA decision-makers to grant funding when we have already made a well-considered professional assessment on their eligibility and the terms upon which funding should be granted using Delegated Functions.

 

Birmingham law firm Community Law Partnership (CLP) faced a 32-month battle to secure legal aid for the landmark case of Samuels v Birmingham [2019] UKSC 28, which is strong evidence of this culture of refusal.[2] As with all of the attached case examples we are sharing with you, because Ms Samuels won her vitally important homelessness and social welfare case, the LAA ended up paying nothing. If CLP had given up and not taken the decision to work ‘at risk’, the case would not have continued and the client would never had had justice – not to mention CLP would have been unable to secure a vital win in the public’s interest. Organisations should not have to work ‘at risk’; the LAA’s reliance on firms’ goodwill and risk-appetite represents a real threat to the administration of justice and the rule of law.

 

A recent LAPG survey showed that the experience of CLP in Samuels was far from being a one-off, but was in fact merely an example of widespread practice, with 86% of respondents experiencing delays when they apply for legal aid, and 95% spending unpaid time on appeals.[3]

 

The level of bureaucracy in applying for legal aid presents a barrier for practitioners trying to help clients in need. For example, there is no central place to find LAA rules and regulations and guidance, leading to wasted time searching for individual documents, and we have no access to the guidance or timelines that LAA decision makers are using to make decisions. If we ring the LAA, we get through to a switchboard who only have the power to send a message to the decision maker or put a note on the file, but not to actually take any meaningful action and connect us the decision maker. The system only allows you to choose an urgency of either 48 hours or 28 days - lots of our cases will need funding decisions between those two extremes. These bureaucratic hurdles present significant barriers for those of us trying to help vulnerable people.

 

Impact of culture of refusal on discrimination cases

 

The aftermath of the coronavirus pandemic will result in more tenants facing discrimination and needing advice and representation. “DSS Discrimination” is the practice by letting agents and landlords of refusing to consider applicants for a tenancy of a property that is otherwise suitable and affordable for them, just because they are in receipt of state benefits. Attached to this submission are anonymised examples of cases where the legal aid agency has refused discrimination cases.

 

The problem is widespread; 63% of private landlords either bar or prefer not to let to people claiming housing benefit.[4]

 

Although “No DSS” policies potentially affect every housing benefit recipient renter, because women and people with disabilities are more likely to receive housing benefit, they are more likely to be at a particular disadvantage. As there is no sufficient objective justification for these policies, they are unlawfully indirectly discriminatory.[5]

 

Our ability to litigate against DSS discrimination is limited by the LAA’s culture of refusal. After extensive support and representation from Shelter, only a handful of those who have experienced DSS discrimination have managed to secure Legal Aid to bring their cases to enforce their right to non-discrimination. This after tens of hours of unbillable Legal Aid appeals work for each and every (ultimately successful) case.

 

Each of these DSS Discrimination cases has had significant real benefits for the individuals involved and on a wider scale as follows:

 

  1. Direct financial benefit and improvements to quality of life to the individual claimants

 

  1. Direct benefit for all future benefit-recipient tenant applicants to the opponent estate agents, who will now be treated fairly.

 

  1. Direct benefit for all future benefit-recipient tenant applicants to other formerly DSS discriminating estate agents who, as a result of seeing these settled cases, will be more likely to change their practices.

 

By its very nature DSS discrimination targets those who are of modest means and those who are potentially life-long renters. The persistent barrier that this discrimination poses to their ever being able to easily and fairly access safe and suitable accommodation is of huge importance to them. The societal importance of a  private rented sector that is compliant with the Equality Act (2010) is huge.

 

 

Recommendation: The LAA should trust providers, and then ensure that they engage and proactively clarify with providers if there are queries before issuing refusals  

Recommendation: Reduce the bureaucracy imposed by the Legal Aid Agency and ensure the contract requirements are simplified

 

Recommendation: Ensure the financial evidence requirements do not present barriers to legal aid providers or prevent individuals from securing the legal support to which they are entitled

 

Recommendation: The LAA’s assessment of the cost benefit test for civil legal aid should reflect the non-financial value, to the individual and to society, of enabling a discrimination claim to be brought. They should apply the SWPI and RRPI tests effectively, starting from an assumption that discrimination claims are not primarily claims for damages and are likely to be in the wider public interest.

 

Recruitment and retention problems among legal aid professionals

The real-terms reduction in remuneration for Legal Aid work has led to the creation of advice deserts, as longstanding providers have retreated from the Legal Aid sector. Existing providers are unable to generate sufficient income to cover their costs without heavy reliance upon unreliable inter-partes income. Increasingly services are running at a deficit to their cost and that is not a viable business model. This is no surprise given that legal aid rates are based on the prescribed fees set 25 years ago and were actually reduced by 10% in 2011.[6]

Research commissioned by the MoJ at the end of 2015 found that, overall, the not-for profit legal advice sector (if counted by the number of centres providing advice) has shrunk by over 50% in the ten years from 2005 to 2015 and that 54% of those surveyed were forced to make major changes to their service due to the cuts to Legal Aid.

Increasingly, services struggle to find applicants for vacant positions. Shelter currently have a number of vacant housing lawyer posts which we have been unable to recruit to despite repeated efforts. Where we are able to recruit it is often those with less experience in social welfare law, increasing the training and supervision burden on teams who are already stretched. The effect of that is to reduce fee earning time, which perpetuates the problems of financial unviability.

If there is no increase in remuneration rates in the immediate future, it is inevitable that housing advice deserts will increase and that more providers will withdraw from Legal Aid work altogether, threatening access to justice and the basic principle of the rule of law.

Recommendation: Increase legal aid remuneration rates and provide a mechanism for rates to be increased to reflect cost of living increases

 

The impact of the court reform programme and the increasing use of technology on legal aid services and clients

The coronavirus pandemic has resulted in people who otherwise may not have engaged with the digital world becoming increasingly reliant on telephone and online digital means for meeting their everyday needs.

Shelter research shows that a multi-channel strategy is needed in order to address everyone’s needs, with person-to-person services being vital for people with more severe, complicated and urgent problems.[7] Digital services can help people to resolve their housing problems before they reach crisis point and help people build their confidence around housing rights and responsibilities. This is a worthwhile objective, but the complexity of housing law and court procedures, and the barriers that people face when up against local authorities or state agencies, means that one-off advice is insufficient for many people seeking to enforce their rights. Articulate, confident people struggle to resolve problems with their housing benefit or universal credit, or to represent themselves in court when faced with a local authority or landlord’s barrister. And of course, Shelter’s clients are often people who have multiple complex needs and are facing an extremely stressful life event.

 

I represented a case concerning a client with multiple complex needs. It was a pre-Covid possession case with a private landlord with a counterclaim for disrepair. Obtaining instructions remotely has been a challenge as my client struggles on the telephone. The hearing took place by telephone and he lost the connection – he has an old phone and wasn’t able to use the info given to him by the operator to get back in. The hearing took place in his absence and he was luckily represented, but if he had not been it would have been difficult for him to work out what to do next and may have been to his detriment.”

                                                                      - Shelter solicitor, North-West

Digital advice can be useful in informing people of their rights and giving them the knowledge they need to enforce their rights in some cases. Digital advice on its own, however, cannot replace the need for casework and advocacy for those at risk of losing their home. The increasing use of technology offers benefits for much-needed court efficiency, but has little effect on people’s need for tailored advice, casework and legal representation.

The impact of Covid-19 on legal aid services and clients

Clients, legal practitioners and statutory services have all been struggling with the impact of Covid-19.

“People who are struggling aren’t getting the support they previously relied on; social services are over-stretched and limited in face-to-face visits, support workers aren’t able to provide the same level of support, and health services too. People have been cut off, which has increased stress and anxiety levels and has impacted on their ability to cope. It makes it harder to access legal aid services, and to then comply with the requirements.

- Shelter solicitor, South-West

Practical difficulties of carrying out casework in Covid-19 times

At the start of the coronavirus pandemic in the UK, legal aid providers had to begin to provide their services remotely almost overnight. Small providers, who have long been struggling, as explained above, have often not been able to invest in the IT infrastructure and sophisticated case management software that would make the change to remote working easier. Shelter has the benefit of being a larger organisation and has been in a better position than many to manage this change in expectations, but no legal aid provider has the same technological capability of large city firms.

Most crucially, remote casework has made it extremely difficult to form a relationship and build trust with clients. The personal interview enables the adviser to take comprehensive instructions and form a rounded view of the case. The task of probing and questioning the client’s account can be more effectively and efficiently accomplished in person. Clients often find it easier to express themselves face-to-face in a safe, private space. Non-verbal communication often helps clients explain their situation and enables advisers to understand the client’s needs and to ensure that they understand the advice they are being given. This benefits clients who may be vulnerable or have limited verbal or written communication skills, who are often in urgent or complicated situations.

On a practical level, the lack of face-to-face contact makes it significantly more difficult to review essential client documents. Few clients have access to a scanner. Some may have a mobile phone – not necessarily a smart phone - which they can use to photograph a document and email this, but images are often of poor quality, rendering them unreliable. Many clients have no way of sending images in this way, and have to post documents into empty Shelter offices.

“…when it all has to be done remotely with clients who often have addictions issues and mental health problems it just makes it all much more difficult.  Dealing with Court deadlines for witness statements is very difficult when the office is not open and clients cannot call in with their signed statements. They simply do not have the technology to deal with their court cases and turn things around quickly… when the clients have ill health the problems of complying with a deadline are made even more difficult….”

- Shelter solicitor, North-West

 

These difficulties of carrying out basic actions are particularly concerning in urgent litigation. The Master of the Rolls working group, convened to manage the re-opening of the courts after the suspension of possession proceedings lifted, acknowledges that face-to-face hearings are necessary for possession cases. We would argue that face-to-face hearings are of equal importance in any case where a client must give evidence, such as anti-social behaviour injunctions or appeals. There is a clear imbalance in litigation with major landlords, with technology at their fingertips, and the difficulties we face complying with directions with disadvantaged clients and limited resources.

 

 

 

October 2020

 

 

 

 

 

 


[1] Citizens Advice, Saving Justice, 2011

[2] The Community Law Partnership, Terryann Samuels – The long road to the Supreme Court – Struggles with the Legal Aid Agency, 2019

[3] LAPG Survey on LAA decision-making processes, Oct/Nov 2019

[4] YouGov survey of 1009 private landlords in Great Britain, online, 18+, Dec 10 – Jan 20

[5] Stephen Tyler v Paul Carr Estate Agents, Birmingham County Court, 2020.

[6]  Community Legal Service (Funding) (Amendment No.2) Order 2011

[7] Down the Line, a TNS BMRB report for Shelter, 2015,