Evidence submitted by Shelter
Shelter is the UK's largest independent provider
of housing advice and legal services, helping over 100,000 people
every year. In addition to Shelterline, our national 24 hour housing
helpline, and Shelternet, our web-based information and advice
resource, we provide a wide range of services including:
— A national network of more than 50
housing aid centres (HACs) and projects providing information,
advice and advocacy—we have more contracts with the Legal
Services Commission (LSC) than any other provider in the housing
field.
— The National Homelessness Advice
Service (NHAS) which provides second tier advice to people with
housing problems through citizens advice bureaux (CABx).
— Specialist advice and consultancy
on housing law and procedure for legal practitioners throughout
the country via the LSC's Methods of Delivery pilot.
— A team of solicitors with experience
in providing representation at every level of the court system
and expertise in representing clients involved in possession actions
via county court duty schemes.
— A Housing Rights Promotion Project
funded by the LSC to increase awareness of housing rights in the
North West and a wide range of publications and training aimed
at other practitioners and professionals throughout the advice
field.
INTRODUCTION
Shelter welcomes the Constitutional Affairs
Committee's inquiry into legal aid. The availability of high quality
publicly funded legal and advice services is essential to meet
the Government's objective of increasing access to justice. In
our experience, poor access to advice and legal representation
means that people are often unaware of their rights and how to
enforce them and do not get the help they need to resolve their
problems.
Legal and advice services also have a critical
role to play in helping to meet the Government's wider social
policy objectives. Lack of access to advice has been identified
as a key factor in creating and maintaining social exclusion[71]
and, as the report Paths to Justice[72]
found, those who are socially excluded are the least likely to
take action to resolve their problems. In short, advice and representation
are essential public services and it is vital that they are adequately
funded and given sufficient prominence within the Government's
overall spending priorities.
This inquiry arrives against a background of
growing concern about access to publicly funded advice and representation
and debate about the future viability of the Community Legal Service
(CLS). The CLS encompasses a wide range of service providers including
advice agencies, law centres, CABx and community groups, as well
as solicitors in private practice. Shelter is a key stakeholder
in, and supporter of, the CLS. We believe it has had some success
in improving the co-ordination of service delivery, driving up
quality and promoting some innovative new approaches to providing
services. However, we share the concerns of other providers about
emerging gaps in provision and the implications of this, particularly
for the poorest and most excluded people in society.
In addressing the terms of reference of the
inquiry, our evidence focuses on the housing field. Housing is
one of the most important areas of the law identified by the Government
among its priorities for public funding. Research suggests that
more than 1 million adults experience housing problems requiring
a legal solution every year.[73]
Housing law is particularly complex and unlike other social welfare
issues, which can often be settled using other mechanisms such
as mediation or tribunals, disputes often require litigation in
the courts.[74]
The availability of specialist legal representation is therefore
critical to enable people with housing problems to obtain access
to justice and enforce their rights.
More fundamentally, access to housing advice
and representation also has a critical role to play in preventing
homelessness. Much of Shelter's work—defending possession
actions, securing emergency help under the homelessness legislation
or resolving disputes between landlords and tenants, for example—relies
on being able to obtain speedy and effective legal back up. Our
legal team advise on well over 5,000 cases annually. However,
in the majority of cases where legal action is needed, advisers
rely on being able to refer cases to specialist solicitors at
a local level. Gaps in provision therefore have very serious implications—in
some cases, access to legal representation can, literally, make
the difference between whether or not a client ends up on the
streets.
What evidence is there of the emergence of "advice
deserts"?
Shelter shares the concerns of other providers
that it is becoming more difficult to access legal representation.
In its annual report for 2001-02, the LSC highlighted a 6 per
cent fall in CLS suppliers over the calendar year and suggested
that up to 50 per cent of solicitors firms are "seriously
considering stopping or significantly reducing publicly funded
legal work" due to concerns about remuneration and profitability.
These concerns were echoed in the Law Society's report Access
Denied[75]
which anticipated a dramatic fall in the number of solicitors
in private practice undertaking publicly funded work on social
welfare issues over the next few years.
The second highest anticipated fall identified
in the Law Society report—38 per cent—was in the housing
field. Shelter's experience backs these concerns up. It is important
to place this in context—there have always been parts of
the country, particularly in rural areas, where solicitors have
been in short supply. However, the evidence from our advisers
is that, in many parts of the country, they are finding it increasingly
difficult to find solicitors to whom they can refer clients. We
are also concerned that many solicitors are using up their allocation
of matter starts before the end of the financial year, leaving
them with no capacity to take on new cases.
A snapshot survey of our housing aid centres
last year highlighted these difficulties. Some of the findings
are summarised below:[76]
— In London, where housing and homelessness
problems are particularly acute, our advisers report that it is
becoming increasingly difficult to find solicitors to take on
routine cases and "virtually impossible" to find them
in emergency cases. In some cases, this means that clients are
being forced to sleep on the streets.
— There are no firms with housing contracts
across the whole of Gloucestershire or in North Somerset. Although
some firms are able to provide general advice, they are not able
to provide the level of expertise needed by most of our clients.
— In Bristol, there is now only one
firm carrying out specialist housing work—five years ago,
there were at least six firms practising in the housing field.
— There is only one franchised firm
specialising in housing in Kent and none at all in Medway.
— Provision is patchy in large parts
of the West Midlands—in Dudley, for example, there are no
firms offering specialist housing advice.
— There are no housing solicitors in
Northamptonshire—cases are referred to the single solicitor
with housing expertise in Milton Keynes.
The pattern that emerges is one of over-stretched
firms struggling to meet demand and significant gaps in provision—and
our evidence is that the situation is worsening.
What action is being taken to ensure that there
is access to legally aided advice in all legal specialisms?
The LSC has been proactive in piloting new services
to plug gaps in provision through the Methods of Delivery pilot.
Shelter has been closely involved in the development of three
of the pilots including the Specialist Support pilot which enables
6,500 solicitors firms, law centres and other agencies to access
the support of our Legal Team via telephone advice, casework consultancy
and training.
The evaluation of the pilot found that it had
been successful in increasing access and improving quality by
speeding up the progress of cases, enabling local practitioners
to take on more complex matters and reducing the number of unwinnable
cases being pursued. Based on our involvement in the pilot, Shelter
strongly supports the use of "second tier" services
as an effective means of increasing access to high quality specialist
advice.
Shelter is also currently exploring the potential
to establish small teams of solicitors to provide legal back up
to advisers on a regional basis. We believe a more regionally-based
approach could help ensure effective co-ordination and a more
even spread of provision.
How can the Department of Constitutional Affairs
and the Legal Services Commission provide incentives for legal
aid practitioners to continue legally aided work?
Clearly, the key issue here is remuneration.
The evidence set out above shows how solicitors are pulling out
of the market due to the impact of the long term decline in legal
aid remuneration. The failure to even uprate funding for contracted
providers in line with inflation in 2003-04 was particularly damaging—the
annual RPI linked increase should be restored with immediate effect.
It is important to stress that this impacts
on the not-for-profit sector as well as private practitioners.
Along with other providers, Shelter's experience is that we are
losing money on some of our LSC-contracted work. We believe that
contracts should be fully funded in line with the model set out
by the Association of Chief Executives in Voluntary Organisations
(ACEVO). We would also welcome a reduction in some bureaucratic
procedures (such as the requirement to provide proof of eligibility
when clients are very vulnerable, for example) and lighter touch
auditing for agencies with a proven track record in providing
high quality advice.
Finally, like other areas of social welfare
provision, the availability of funding for housing work has been
squeezed by the growth of the budget for criminal and immigration
work—this also needs to be addressed.
Is the perception that legal practitioners are
moving out of legally aided work correct?
As set out above, Shelter's evidence is that
solicitors are pulling out of housing work, especially those who
previously retained a limited housing specialism as part of a
wider practice. We share the concerns of other advice agencies
that this is part of a worrying trend across the social welfare
field.
Can the requirement for legal aid be reduced
by the resolution of some legal issues on a more informal basis,
through the citizens advice bureaux, long distance services or
otherwise?
As set out above, Shelter believes that second
tier support services have a key role to play in plugging gaps
in service provision. We also believe that the Internet has an
important role to play in providing information and basic advice
to both clients and practitioners. More broadly, we believe that
while—for the reasons set out above—access to legal
representation is critical, alternative methods of dispute resolution
also have a key role to play in resolving problems before they
get to court.
For example, Shelter has advocated the use of
arrears resolution services in rent arrears cases.[77]
The number of social landlord possession actions doubled between
1994 and 2001 and now stands at around 150,000 per annum.[78]
However, outright possession is granted in only around 30,000
cases, suggesting that many of them could be dealt with more effectively
without recourse to the courts. Arrears resolution services would
work with landlords and tenants to stabilise arrears by resolving
benefits issues,[79]
implementing a repayment plan, providing debt counselling and
advising tenants on their rights and responsibilities.
We believe that this kind of early intervention
would be effective in preventing homelessness and would provide
a cost effective alternative to court action.[80]
The services could be provided by independent advice agencies
and funded through a joint initiative between the DCA and ODPM.
Shelter also strongly supports the use of county
court duty schemes as a final safety net for defendants in possession
cases—we believe that these services should be available
in all county courts.
Would a salaried service or the provision of law
centres be a viable solution to lack of provision, either in areas
without sufficient practitioners or elsewhere?
Law centres provide high quality services and
have enjoyed a revival since the CLS was established, although
they still often suffer from funding difficulties. More generally,
Shelter supports the current "mixed economy" of provision
in civil work. We believe that not-for-profit providers often
bring significant benefits in terms of broader organisational
expertise and understanding, a more integrated approach to resolving
problems and an ability to access alternative funding mechanisms.
We would strongly oppose the formal separation of the advice and
representative functions—we believe this would, in many
cases, impact on the quality of service provided and reduce choice
for the consumer.
What would be the comparative funding costs of
a salaried service?
Shelter is not in a position to comment on this
question, although we note the mixed evidence presented so far
on this.
Shelter
January 2004
71 Legal and advice services: A pathway out of social
exclusion, LCD/Law Centres Federation, 2001. Back
72
Paths to justice: What people do and think about going to law,
Professor Hazel Genn, 1999. Back
73
Ibid. Back
74
The evaluation of the Methods of Delivery specialist support
pilot found that practitioners identify housing as the area of
the law where they need the most support-80 per cent of those
needing telephone support service state that this is due to the
complexity of the case. Back
75
Access Denied, The Law Society. Back
76
The findings reflect the position at the time of the survey in
May 2003. Back
77
The More than a roof report, DTLR, 2002, which set out the Government's
strategy for tackling homelessness, committed it to investigating
the cost effectiveness of arrears resolution services. Back
78
Statistics distinguishing the reasons for possession being sought
are not collected, although it is estimated that rent arrears
account for around 90 per cent of actions. Back
79
Shelter's evidence is that problems with the Housing Benefit
system is the single biggest cause of rent arrears. Back
80
We estimate that the cost to a local authority of evicting a
tenant for rent arrears is between £2,000-£3,000 in
unrecoverable rent arrears, housing management costs, legal fees
and the cost of a subsequent homelessness application. Back
| 
