Written evidence from the Housing Law Practitioners Association (HLPA)

 

About HLPA

The Housing Law Practitioners Association (HLPA) is an organisation of solicitors, barristers, advice workers, independent environmental health officers and others who work in the field of housing law. Membership is open to all those who use housing law for the benefit of the homeless, tenants and other occupiers of housing.  HLPA has existed for over 20 years. Its main function is the holding of regular meetings for members on topics suggested by the membership and led by practitioners particularly experienced in that area, almost invariably members themselves.

 

The Association is regularly consulted on proposed changes in housing law (whether by primary and subordinate legislation or statutory guidance). HLPA’s Responses are available at  www.hlpa.org.uk.

 

Membership of HLPA is on the basis of a commitment to HLPA’s objectives. These objectives are:

 

 

The HLPA Legal Aid Working Group has prepared this communication. This group meets regularly to discuss legal aid  issues as they affect housing law practitioners.  The Convenor of the group reports back to the Executive Committee and to members at the main meetings which take place every two months.  The main meetings are regularly attended by about 100  practitioners.


 

Response

In this paper we seek to demonstrate the many and deep negative impacts of LASPO on legally aided law for clients and for providers by concentrating on one area of housing law – disrepair and housing conditions – as just one example of the wider negative impacts across the board.

 

The impact of LASPO

In September 2018 HLPA put forward a submission to the Post Implementation Review of the Legal Aid Sentencing and Punishment of Offenders Act (“LASPO”) and we would urge the Committee to consider the points which we made in that document which we have appended for ease of reference.

We recently surveyed our members and asked for their views about legal aid, with a particular focus on the impact that LASPO had had on their practice and the sustainability of the housing law profession. The survey is still open for responses. As of today’s date, we have had responses from 47 housing providers. 93.6% of providers stated that LASPO had had a mostly negative affect on the scope of the work that their organisation has traditionally done for clients. 90.5% said that LASPO had had a mostly negative impact on the outcomes for their clients. 93.2% said that LASPO had had a mostly negative impact on their organisation’s income.

In explaining the reason for their responses, the majority of providers cited two issues: firstly, the removal from the scope of legal aid funding of most early advice, particularly in respect of welfare benefits, and secondly, the restrictions which have now been placed on providers’ ability to pursue disrepair claims on behalf of their clients.

 

What our members say:

 

Without being able to provide early advice clients are left waiting for a crisis to occur before we can become involved in a very limited aspect of their problem - this has dire consequences for the client. Problems that could have been prevented become life changing.

 

Our inability to give Benefits, Debt and Employment law advice mean that our clients do not get that high quality advice from us. There are few other providers in this town.

 

Being unable to challenge benefit decisions, and take disrepair claims for clients causes real injustice. With benefits issues solicitors are forced to do the work for free in the interests of their clients and the restrictions on disrepair make running a freestanding disrepair case with legal aid so complicated that it's not worth doing.

 

With the absence of benefits advice, we can't assist people to resolve the underlying cause of their housing issues. No other organisation has been able to pick up the slack, as the Citizens Advice Bureau lost their legal aid welfare benefits contract at the same time and can no longer fund casework. This change occurred with the introduction of Universal Credit, so advice was seriously needed but absent. Many people were living on foodbanks. Also, we've had a major drop in disrepair matters, letting landlords off the hook.

 

It simply clipped our wings and charities (who were already overstretched) have attempted to fill the gap. However, so few can access justice.

 

 

Just one example of the impact of LASPO including perverse outcomes

 

We wanted to focus particularly on the impact that the restrictions on providers’ ability to pursue disrepair claims has had. Before LASPO, where a client was living in rented accommodation which was affected by disrepair, legal aid funding was generally available to pursue a claim against the landlord with the aim of obtaining compensation (known as a claim for “damages”) for the tenant and an order from the court requiring the landlord to undertake works to remedy the disrepair (known as a claim for “specific performance”). Where successful such a claim would generally be accompanied by an order that the landlord pay the tenant’s costs and so the burden on the legal aid fund would be minimal or nothing. This outcome was desirable in two ways – (i) the organisation representing the tenant could achieve good fee income sustaining the viability for the organisation that would otherwise struggle on legal aid fees alone and (ii) the legal aid fund was preserved on a ‘polluter pays’ basis because the landlord would be meeting the costs. We expand on this further below.

LASPO introduced two main restrictions. Firstly, it removed from scope the funding for the damages element of the claim meaning that legal aid was only available to fund a claim for specific performance. Secondly, it introduced a threshold such that funding was only available where the disrepair in the property represented a serious risk of harm to the health or safety of the occupants.

Claims brought under legal aid to get works of repair done can still be successful in that a landlord will generally do works once proceedings are on foot. However if works are done before a trial – a good outcome – it is usually not possible to resolve the claim with a costs order in the tenant’s favour. Therefore the full cost of getting the works of repair done will be met by the legal aid fund – not by the landlord.

On a case-by-case basis this would be an entirely perverse outcome leading to greater draw on the legal aid fund. 

Furthermore there is no incentive for bad landlords or stretched social landlords to do works of repair to avoid litigation. There is no downside for a landlord in waiting for litigation and only then carrying out repairs.

 

 

 

 

Decline in legally aided disrepair claims

 

Whether by design or by accident these restrictions have led to a dramatic decline in the number of publicly funded disrepair claims. The chart below shows the number of applications for legal aid funding for disrepair claims since 2010.[1]

Chart, bar chart

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Since LASPO has been introduced some organisations have been able to continue to bring cases by offering clients a Conditional Fee Agreement (“CFA”), sometimes known as a “no win no fee” agreement. However, CFAs cannot be offered by all organisations, and are particularly difficult for small firms and charities because of the high risks they entail. Furthermore, CFAs are not available for large numbers of clients because they will not pass the rigorous risk assessments which firms must carry out in order to maximise the chances that they will be paid for the work they have undertaken. For example, whereas most firms will offer a CFA to a tenant with a large public sector landlord, such as a local authority or a housing association because there is a reasonable certainty that any costs order which is awarded will be satisfied, almost invariably tenants who are renting in the private sector will be turned away because of the inherent risk associated with trying to enforce any costs order.

The decline in legal aid funding has meant that there have been fewer cases brought in the courts. HLPA are particularly concerned that the impact will be that new legislation such as the Homes (Fitness for Human Habitation) Act 2018 which came into force in March 2019, will not bring about the changes in landlord behaviour which Parliament intended when the Act was passed. This Act has the effect of implying into almost every residential tenancy agreement, a term requiring that the property be fit for habitation at the time that it is initially let to a tenant and throughout the tenancy. Without the means for the vast majority of tenants to bring cases before the courts there is no meaningful way for tenants to take advantage of the new protections afforded to them by Parliament. There is consequently a real danger that the law becomes dead letter law.[2] It is a contradiction in terms to acknowledge the need for legislation whilst simultaneously reducing the ability to enforce it.

The protection for renters in Landlord and Tenant Act 1985 and the provision of legal aid were introduced to address a very real problem in standards of rented accommodation. Removing access to that protection by restricting legal aid risks a return to the dire living conditions prevalent in the 1960s, 70s and early 80s. 

 

Decline in housing law specialists

HLPA believes that the restrictions on funding disrepair cases is one of the driving factors in the declining numbers of specialist housing law providers. The growing concern over legal aid deserts across the country has been well documented by the Law Society and others. The removal of disrepair claims from the scope of legal aid funding removed a large chunk of income from many housing law providers, often the only way that providers had previously been able to maintain an economically viable business. This is because successful disrepair claims usually resulted in an order requiring the landlord to pay the costs of the litigation. These costs would be paid at market rates, usually three or four times higher than legal aid rates, and this income could then be used to subsidise other non-profitable areas of work such as homelessness advice and representation which is often loss-making.

The difference in the rates payable at market (or “inter partes”) rates and legal aid rates is illustrated in the table below:

 

Average guideline hourly rate for a qualified solicitor in central London

Average guideline hourly rate for a qualified solicitor in National Grade 2

Hourly rate paid for a County Court claim at legal aid rates

£251.67

£174.67

£63.00

 

The figures used to calculate the average guideline hourly rates have been taken from the Government’s website: https://www.gov.uk/guidance/solicitors-guideline-hourly-rates

It is particularly difficult for housing law providers to subsidise their legal aid work with more lucrative higher paid privately funded work. Most clients in need of the specialist housing law advice which HLPA members offer are tenants who are renting from landlords, or individuals who are homeless or facing homelessness. By their nature these clients tend to be too poor to be able to pay privately for legal advice where their case does not qualify for legal aid or where they themselves are not financially eligible for legal aid. There are also a number of charities who offer housing law advice who are prohibited from charging clients for services.

One further point to make about disrepair claims is that the cost to the public purse of funding these types of cases is minimal. In almost all successful cases the legal costs are ultimately recovered from the landlord. Any portion of the legal costs which are not paid by the landlord are taken by the Legal Aid Agency from any damages awarded to the client by virtue of the statutory charge. The legal aid funding for these cases effectively acts as a loan which is paid back in full at the end of the case.

 

What our members say:

 

We can no longer do claims for disrepair. Some firms do them as CFAs but not all organisations can do this and the claims and the clients have to be suitable for a CFA. Given the amount of people renting in the country and everyone's general knowledge that many landlords are not good about doing repairs, it is not right to leave the poorest people who also frequently have other problems such as disabilities without the means to take their landlord to court if the repairs are not fixed. The people living in properties, including large tower blocks, are the best people to spot an emerging problem such as damp or cracking or fire doors not working. It is totally and utterly essential that if they bring it to the attention of the landlord and the landlord does nothing they can then take the landlord to court. If this does not happen because there is no legal aid then I fear that Grenfell will happen again.

 

Where there is a choice between taking on work under legal aid funding where a client may be more in need but which will involve having to work with the Legal Aid Agency and be paid legal aid rates or a CFA case where a client is less in need, from a commercial standpoint it will be a more attractive option to go with the CFA work. This presents a huge problem for the most vulnerable clients in our communities, who will find it harder and harder to find legal representation for issues that can only be funded via legal aid.

 

Clients should not have to and do not want to forego damages to which they are entitled. The threshold of 'significant risk of harm' is further too high. We have experience of even lack of heating/hot water being refused for legal aid. The cost of remedying the urgent element of the repairs only is unlikely to be over £1,000. Such cases are therefore small claims and legal aid is not available in any event. Clients are as a result not able to get any meaningful disrepair advice or representation.

 

Disrepair is no longer in scope save for in the most serious/urgent cases. This leaves many tenants who are living in wholly unsuitable/unsatisfactory living conditions, with clear disrepair to their homes, without access to justice. In many cases the tenants are vulnerable. Providers that can and do offer 'no win, no fee' CFAs have to undertake a detailed risk assessment, and such fee arrangements are not suitable for many cases (for instance, against private landlords or where there are mental health concerns on the part of the tenant).

 

 

Sustainability of the profession

HLPA members are increasingly pessimistic about their ability to continue to provide legally aided services with particular concerns expressed about recruitment and retention of staff and the ability of organisations to remain financially viable. In our recent survey of our members we asked them how easily they are able to recruit to meet their organisation’s aims for legal aid services. More than half (52.3%) said it was hard, about a third (31.8%) said it was neither easy nor hard and the remainder said that they didn’t have any plans to recruit. The other response that was available was “easy”. No one chose this option.

64% of responders said they were worried about their ability to retain staff to deliver legal aid services over the next year, 84% were worried about their ability to retain staff over the next five years. 62% said they were worried about their ability to sustain legal aid service at all over the coming year, rising to 96% who were worried about their ability to sustain legal aid services over the next five years. 85.7% said they were looking for other streams of work (with 73.8% saying that this was to a significant extent because of LASPO).

Figures released by the Legal Aid Agency to the Civil Contracts Consultative Group (of which HLPA is a member) in September 2020 show a marked decline in the number of firms providing housing law advice under a legal aid contract since LASPO. The figures are represented in the graph below and show that there was a rally in numbers in September 2019, coinciding with the latest tender round, but that the numbers have already almost fallen back to the pre-September 2019 level. 

 

 

What our members say:

 

Legal aid does not pay. It is not financially viable. No pay increase for 23 years and actual pay reduction in 2013 under LASPO. Cannot recruit staff. A very bleak future for publicly funded services.

 

Staff get demoralised by dealing with the Legal Aid Agency. It adds a whole extra level of stress to what is already a stressful role - sometimes dealing with the Legal Aid Agency is harder than dealing with the opponent. Many experienced practitioners burn out and leave the work, new solicitors can't afford to accept jobs at legal aid pay rates because they can't afford housing etc. It is particularly difficult to recruit supervisors.

 

We work in an area of the UK where we are the only provider and we have three fee earners. We cannot find anyone else and it is unlikely that we would be able to recruit, other than maybe a caseworker with no experience. A Law Centre close to us is about to close because their Director is retiring and they cannot fill the post.

 

Experienced staff in particular are very hard to replace. We worry that at the junior end, this will soon become an unviable career choice for bright committed young lawyers.

 

Stress and poor pay are among the factors causing people to leave this sector. Stress has caused me to decide to leave casework.

 

Delivering legal aid, after successive cuts, is a huge challenge. I have been doing this for 10 years and the fees (rates/fixed fees) have not increased in that time, which means lawyers have to work longer hours to keep it going. Many providers have stopped doing this work, or have closed through necessity, even in London, which is sad and worrying.

 

Legal aid has to be funded by other parts of the organisation that I work for which means that continuation of legal aid is always a worry and always up for reconsideration by the organisation.

 

How can we persuade any recent graduate to enter this area of law when they have over forty thousand pounds worth of student debt to pay off and the salaries are so much lower than what they can get paid working in other law firms? All our staff members are now in their 40s and over and we have no young people wanting to work in this area of law.

 

The department is leaning towards more private work as this is more viable.

 

Currently we are 70% private and 30% Legal Aid. As the horror of Legal Aid bureaucracy increases we may simply have to abandon Legal Aid as there is so much admin, auditing, peer review and fighting the Legal Aid Agency all of which is unpaid.

 

I am not sure if my employer will bid again for a Legal Aid contract when the current contract ends. The difficulty in making it viable to run a housing legal aid department is becoming more and more prevalent.

 

 


Conclusion

The LASPO reforms in the area of legal aid for disrepair have:

But disrepair is only one (albeit stark) example of the serious and ongoing negative effect of LASPO on access to justice.

 

November 2020

 

Sally Cheshire              - HLPA exec member

Marina Sergides – HLPA Co-chair

Simon Mullings – HLPA Co-chair

 

 

 

 


[1] Legal aid statistics England and Wales detailed civil data April to June 2019 - https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2019

[2] Disrepair and housing conditions are just one example of lack of funding leading to dead letter law – see https://www.lag.org.uk/article/207304/homes-and--dis-contents--getting-full-value-out-of-the-homes--fitness-for-human-habitation--act on this issue but also https://www.lag.org.uk/article/204910/mortgage-possession-claims--the-changed-legal-landscape in relation to mortgage possession proceedings where there has been a similar decline, leading to radical changes in the law being overlooked.