WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
December 03 2020
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

‘We need to fight to protect legal aid – not accept defeat’

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‘We need to fight to protect legal aid – not accept defeat’

Trellick Tower: Jonathan Brown (Flickr, Creative Comms)

The charity JUSTICE has published its report, entitled Solving Housing Disputes, which proposes a radically new system for resolving various types of housing disputes such as possession proceedings, disrepair, and homelessness reviews. This new Housing Dispute Service (HDS) would take housing cases outside the remit of civil courts (at least at the early stages), to be replaced by a structured form of alternative dispute resolution.

  • See here on the Justice Gap for coverage of the JUSTICE proposals. The Housing Law Practitioners Association argued that the HDS would largely be ‘lawyer-free zone’

The HDS would act as a neutral arbitrator engaging in a staged approach of fact-finding, interim assessment, facilitated negotiation, and adjudication. If either party were not satisfied with the outcome, it could appeal to the County Court.

The principle underpinning this proposal is that the resolution of housing disputes should not be adversarial, and should seek to maintain the relationship between the parties (eg landlord and tenant). A key feature of removing the adversarial element of disputes is the exclusion of lawyers from the process. That is not to say that the report calls for housing lawyers to be rendered extinct. It does suggest that parties to the HDS should be able to seek specialist legal advice, and calls for creating a panel of independent housing lawyers.

The report has met with robust opposition from, it appears, virtually all tenant lawyers who have been asked their opinions on the matter – myself included. The issues raised are too numerous to discuss here (the report itself runs to 156 pages including annexes), so I will focus on two broader concerns: whether tenants would be able to sufficiently access legal advice in this new landscape, and whether such root and branch change is the ideal solution to the problems the report seeks to address.

Access to legal advice
The report calls for tenants to be able to access advice from a member of a proposed panel of independent lawyers, and also to be able to seek advice from their own choice of lawyer. This would mean obtaining publicly funded advice on the same issue from two different lawyers. Given that there are already strict restrictions on doing so, it seems highly unlikely that this would be allowed.

Substantial questions remain regarding the constitution of the panel itself. It is proposed to be composed of specialist lawyers drawn from local authorities, law centres, and the legal aid field generally. However it is unclear how many lawyers will be included on the panel, what the selection criteria would be, whether tenants will be able to choose a lawyer or have one assigned, whether they will be able to meet with the panel lawyer face to face, and perhaps most importantly, whether the lawyer’s overriding duty will be to the tenant, as in a traditional lawyer-client relationship, or to the HDS itself in a way more akin to an expert having an overriding duty to the court.

The issue of advice deserts is also unresolved by the panel proposal. If there are no housing lawyers in a particular region, then how will tenants obtain advice there? Will the Government pay for panel lawyers to travel to the tenants to provide face to face advice? Again, this seems unlikely.

Rightly, the report acknowledges that by removing most disputes from the courts, existing housing lawyers will largely be deprived of the opportunity to be remunerated at higher rates when cases are won at court. This is currently the primary means by which Law Centres and legal aid firms remain financially viable, as they cannot do so based on legal aid rates of pay. The report’s answer is to substantially increase legal aid rates, and to pay panel lawyers substantially higher rates as well. However, given that successive governments have opted not to increase legal aid rates for the past 24 years, it seems unfathomable that both issues could be achieved simultaneously – particularly under the current government.

If the government were to pursue these proposals, it seems inevitable that the pool of existing housing lawyers would diminish. The Ministry of Justice has seen its budget cut more than any other major Whitehall department. This has already impacted the legal aid sector particularly harshly. If the decision were taken to fund the HDS in a nation-wide roll out without a substantial increase to the MOJ’s budget, it would be entirely unsurprising if funding for housing legal aid were redirected to fund the HDS. Tenants and other vulnerable parties in need of housing advice would in such a scenario become increasingly dependent on the HDS panel of lawyers, which could in turn be used to justify further legal aid cuts.

A better solution?
To be clear, there is much to be lauded in the JUSTICE report as well. The proposal to have homelessness reviews conducted by an independent and not-for-profit body is desperately needed. The report also identifies many issues affecting access to justice for tenants, it acknowledges the unsustainable rates of pay under legal aid, and it flags up the need for care to be taken when engaging vulnerable parties. One would be hard pressed to find a tenant lawyer who does not think the current system needs substantial and urgent improvements.

However, the proposals for the HDS seem to miss the point, or perhaps simply to stray too far from the fundamental aspects of the existing system. The English legal system has formed the basis for many other legal systems around the world, and for good reason. It has been honed over centuries into a means of achieving impartial justice, in the right circumstances and with the right resources. It is the circumstances and resources (or the lack thereof) that have caused the vast majority of the problems that the report seeks to address, rather than the system itself.

It is correct that tenants facing eviction, or with other housing problems, often require a multi-faceted and holistic remedy. Commonly, this may include debt and welfare benefits advice. This can be provided under the existing system – and indeed previously it was, as more benefits issues were in scope for legal aid prior to the 2012 legal aid reforms (the LASPO Act). Restoring funding for the broad range of benefits matters previously covered by legal aid would virtually instantly create a resolution for this problem.

This is an issue widely recognised by housing lawyers. Increasingly, we are looking for creative ways to address it. There has been tremendous success at some law centres, who have employed non-lawyers to work as crisis coordinators. These advisers meet with clients to work out the root causes of their primary problems. For example, a tenant facing possession proceedings for rent arrears may be in that situation because they also have council tax and utilities debts, which were in turn caused by being unfairly dismissed from their job, which has also led to a decline in their mental health. A crisis coordinator will identify these problems and work with the tenant, either directly or by referring them to other specialist agencies, to resolve them. This simultaneously will increase their chances of saving their home.

From there, one can see a less drastic means of addressing the issues raised in the JUSTICE report. It is also in some ways a staged approach, but unlike the report’s proposals, it is a staged approach to fixing the current system. It would include:

  • Re-introducing and expanding legal aid for the types of problems that affect vulnerable members of society (welfare benefits, employment, mental health, and debt, for starters), while increasing rates of pay for legal aid work to make it less financially precarious;
  • Funding law centres or other specialist legal aid not-for-profit organisations throughout the UK, with a focus on existing advice deserts;
  • Creating a legal aid category for crisis management, to fund advisers at such organisations to help clients navigate their various issues and find lasting solutions.

I do not doubt that the JUSTICE Working Party and its contributors, some of whom I know personally, have the best intentions in proposing the HDS. However, I cannot help but feel it is in many ways an acceptance of defeat; an acknowledgment that our legal aid system is becoming increasingly obsolete, and so an alternative system is needed.

We – lawyers and advice workers – simply cannot accept this. We have every reason to be proud of our progressive legal aid system, and must never tire of fighting for it to be strengthened and improved.