Evidence submitted by Civil Justice Council—Housing
and Land Committee
The Civil Justice Council was formed in March
1998 alongside the provisions that invoked Lord Woolf's Report
on Access to Justice (1996). In accordance with Lord Woolf's recommendation
the Civil Procedure Act 1997 (Section 6) provided for the establishment
of the Civil Justice Council, its membership and its functions.
In accordance with that Section the functions
of the Council are to include—
— keeping the civil justice system
under review;
— considering how to make the civil
justice system more accessible, fair and efficient;
— advising the Lord Chancellor and
the judiciary on the development of the civil justice system;
— referring proposals for changes in
the civil justice system to the Lord Chancellor and the Civil
Procedure Rule Committee; and
— making proposals for research.
The work of the Civil Justice Council is effected
both in full Council and through its committees. One of those
committees is the Housing & Land Committee. It is that committee
which makes this submission to the Constitutional Affairs Committee.
We welcome the opportunity to contribute to
the Committee's Legal Aid Inquiry. We view with great concern
the implications for access to justice of the dearth of legal
aid lawyers in the housing field.
THE EXISTENCE
OF ADVICE
DESERTS
1. There can be no doubt about the scale
of the problem. Members of the Housing and Land Committee, which
includes district judges, practitioners and academic lawyers,
have first-hand experience of the difficulties faced by tenants,
mortgagors, occupiers and homeless people in obtaining good legal
advice and representation. The Community Legal Service directory
gives a misleading impression: in our experience, many of the
solicitors' firms listed there as providing either specialist
or general help in housing law have either given up their housing
work to concentrate on other areas or have stopped doing publicly
funded work altogether. The role of the Community Legal Service
Partnerships, which were established with the objective of co-ordinating
legal services within a particular area, has been undermined by
the sheer absence of such provision across large parts of the
country.
2. Those firms, law centres and voluntary
sector organisations which continue to do housing work are frequently
so inundated with work that they report having to turn many people
away. Information from advisers in Shelter's housing aid centres
throughout the country indicates that it is often impossible to
find a solicitor in the local area or beyond who has the necessary
expertise and the capacity to take on a new housing case. As a
result, defendants in possession proceedings are denied representation
that might enable them to preserve their homes. Some local authorities
are able to turn away homeless applicants in the knowledge that
they will not be challenged. One London authority, for example,
has a practice of informing applicants that they have no temporary
accommodation to offer them for the time being: the few applicants
who are able to find a solicitor and launch an application for
judicial review are invariably successful, but the rest have to
manage as best they can.
3. By way of example, in Bristol five years
ago there were at least six firms who practised regularly in housing
law and who sent representatives to the duty possession proceedings
rota at Bristol County Court. Since then almost all of them have
either decided to discontinue doing housing work or not to recruit
a new housing solicitor when the last such solicitor left. There
is now only one solicitors' firm in Bristol doing any significant
amount of publicly funded housing work at the specialist level.
4. We understand that Liverpool has only
two specialist housing firms, one of them in Bootle. In Lancashire
and Yorkshire (apart from Leeds and Grimsby), there are isolated
examples of specialist housing solicitors in urban centres such
as St Helens, Blackburn, Lancaster, Preston, Dewsbury and Huddersfield,
but other provision is haphazard, depending upon whether less
specialised firms are prepared to act under their limited number
of legal aid "tolerances". Provision in more rural areas
is almost non-existent.
5. We understand from Manchester Court Centre
that there are only two firms in Manchester specialising in housing
matters. The Court tell us that this causes immense difficulties
in the management of the duty housing list to which we make reference
below.
6. We believe that there is only one specialist
housing firm in the whole of Kent, which is in Orpington. The
Medway area, with a population in excess of 250,000, is especially
in need of housing lawyers, but there are none. There is poor
provision in the West Midlands outside the city of Birmingham,
and no specialist firm in Northamptonshire and across large tracts
of the West Country.
7. In London itself, which has the highest
proportion of specialist housing solicitors, firms report that
they cannot cope with the numbers of clients who need their assistance
and that they routinely have to turn people away.
8. The pattern of firms ceasing to do housing
work or public funding work altogether is now familiar throughout
the country and shows no sign of abating. Some solicitors who
do housing work also act for landlords, and sometimes for the
main housing association providers in the area. This means of
course that there is a conflict of interest with any tenant of
those providers, and again those tenants may have to go without
advice.
9. It is in the nature of housing work that
many, if not most, cases involve some degree of urgency. At worst,
this may mean an emergency application for judicial review of
a housing authority's refusal of a homelessness application, to
prevent a vulnerable person from being on the streets that night;
or of social services' failure to assist a family with children
who have no other recourse. An illegal eviction demands immediate
action if the tenant is to obtain a court injunction to reinstate
him/her in the accommodation. If a solicitor is to take on an
emergency case, s/he must have, or be able to create, the capacity
to do so. The reality is that hard-pressed private practices are
seldom likely to have such capacity. On the contrary, advice agencies
report that, even where there is a housing practitioner in the
area, it can take so long to obtain an appointment that the purpose
of a referral is defeated: court hearings take place in the meantime
without representation, time limits for appealing are missed,
and illegal evictions take place with no remedy.
10. Some courts run a duty scheme for advice
to tenants attending at court on the return date of the summons
for possession. These duty schemes are apparently suffering from
the problems caused by the reduction in available advice. Some
duty schemes are organised by the court with local practitioners.
We have mentioned Manchester above. There is a duty scheme at
that court but it relies on only three solicitors from two firms
of solicitors in order to maintain it. We understand this to be
increasingly difficult. In some courts advice and indeed representation
is provided through the Citizens Advice Bureau. This facility
has, however, been under strain. In Leeds, for instance, the Citizens
Advice Bureau at the court has recently closed.
Is the perception that practitioners are moving
out of legally aided work correct?
What action is being taken to ensure that there
is access to legally aided advice in all specialisms?
How can the Department for Constitutional Affairs
and the Legal Services Commission provide incentives for legal
aid practitioners to continue legally aided work?
11. We have banded these questions together.
The perception that practitioners are moving out of legal aid
work is indisputably correct, and particularly in the housing
field, which is felt by many firms to be less remunerative even
than other areas of legally aided work such as family law. At
root, the problem of low remuneration is inescapable: even those
firms which are committed to doing housing cases often regard
themselves as subsidising that part of their work from other,
more profitable sources. But there are also particular issues
in the way the public funding system is administered which contribute
towards the malaise.
12. LEGAL HELP
As the Committee will know, there are two main
schemes for the delivery of civil legal services. One is the Legal
Help scheme, which allows for a limited amount of advice and assistance
to be given to the poorest clients (broadly, those on income support
and other subsistence levels of income). Clients on Legal Help
can obtain advice on their cases and solicitors can carry out
a certain amount of correspondence and negotiations on their behalf,
but cannot take any steps in court proceedings. (There is an exception
where emergency assistance at court is required, but it is uneconomic
for solicitors to offer this service unless they are at court
already, perhaps on a duty advice scheme.)
13. The initial limit on Legal Help is two
hours' work. Guidance in the Legal Services Commission's General
Civil Contract allows for that limit to be extended for particular
reasons (although the time allowed is usually insufficient for
the purpose), up to an upper limit of £500. The hourly rate
is £50.05 (£53.10 in London) for those who have a housing
franchise (see below) and £47.80 (£50.70 in London)
for those who do housing work under "tolerances". All
Legal Help work—whether in the franchised or tolerance categories—is
regulated by "matter starts", whereby suppliers bid
for a certain number of cases at the start of the financial year.
Once a supplier has used up its quota of matter starts, it cannot
take on any more Legal Help cases during that year (unless the
Commission exceptionally allows further starts on request). We
are aware that, in response to complaints about reductions in
the numbers of matter starts, the LSC state that they are concerned
that the cost per case has increased substantially in recent years.
14. LEGAL REPRESENTATION
Once a case has reached the stage of court proceedings,
the Legal Representation scheme applies. Provided that the client
is financially eligible (with or without a contribution), s/he
may apply for a public funding certificate, which permits the
solicitor to represent the client in the proceedings, and to instruct
Counsel if necessary. Where a solicitor's firm or organisation
has a specialist contract, or franchise, for the conduct of housing
cases, it can use devolved powers to grant the client a funding
certificate in urgent circumstances, such as where a hearing is
imminent or a time limit is about to expire. Decisions to exercise
devolved powers are subject to approval by the Legal Services
Commission ("LSC"), and to subsequent audit requirements.
15. Where the solicitor does not have a
housing franchise, s/he will not have devolved powers, and an
application for a funding certificate will need to be made to
the regional office of the LSC. There is a marked lack of consistency
of decision-making between regional offices of the LSC as to cases
for which they will grant a certificate. The rates of remuneration
under legal aid certificates are higher than for Legal Help: £66
per hour (£70 in London) for franchisees, with a slightly
lower rate for non-franchisees.
16. Costs limits are applied to the various
stages of a case, which may be extended on application to the
LSC.
17. Against that background, a number of
factors can be divined which collectively contribute to the disillusionment
of solicitors with legal aid work. In respect of Legal Help, under
this scheme, firms have to harvest their "matter starts",
especially when they are operating under tolerances and do not
have enough starts to meet demand, especially where housing cases
are competing against other categories of work for the limited
number of starts allocated.
18. Equally, however, it is uneconomic for
most firms to commit significant amounts of time to Legal Help
because of the low hourly rates. For this reason, the imperative
is to obtain a full funding certificate before any substantial
work on the case can be done. This has two consequences. First,
firms will inevitably tend to choose those cases in which litigation
can be commenced immediately or has already started. Also, some
firms carry out a high percentage of claims for disrepair, as
opposed to other housing issues, because such claims are likely
to result in an order for costs against the landlord: charging
rates under a costs order are not limited to legal aid rates and
will be much higher.
19. Secondly, the failure to encourage solicitors
to do work before a case reaches the stage of court proceedings
means that fewer resources are being devoted to the avoidance
of litigation than to litigation itself. If greater emphasis were
placed on the possibilities for negotiation and settlement, it
is likely that in some cases there would be no need to resort
to court proceedings. By way of example, in homelessness cases
where an authority has made a finding of intentional homelessness,
it is our experience that a strongly argued request for review
of that decision will often result in a change of mind on the
authority's part and will obviate the need for a county court
appeal.
20. The division between advice and representation
is an artificial one. The best way of acknowledging this would
be to abolish the differential between rates of remuneration under
Legal Help and Legal Representation. Much of the best legal casework
consists of pre-action correspondence and negotiation. A strong
letter before action will often lead to a settlement, which is
both in the client's interests and a highly cost effective use
of time.
21. In addition, the bureaucracy of operating
a legal aid case is overwhelming, and this in itself deters practitioners
from doing such work. For example, it should not be necessary
to complete a 20 page application form to justify the grant of
legal aid in every case, bearing in mind that copies of all relevant
documents and the client's statement are also provided. High standards
of file management and of supervision are of course essential,
but audit requirements focus on the formal aspects of a case file,
while the actual substance of the advice and the quality of the
service to the client are largely ignored. The experience of most
housing solicitors is that of having to work long hours and weekends
to maintain the kind of service they wish to provide for clients
and to meet their income targets: the treadmill effect of such
working patterns is what drives so many to seek a less stressful
life in other branches of legal practice.
22. We are not in a position to comment
on what action is currently being taken to ensure access to legally
aided advice in the housing field. As to what incentives need
to be provided, at least under the present mixed structure of
private practice and not-for-profit agencies, it is difficult
not to conclude that the two principal incentives must be improved
remuneration and reduced bureaucracy.
23. We would also, however, strongly recommend
that the LSC make positive overtures to encourage solicitors who
have left the sector to return and to assist in training new housing
lawyers. Rightly or wrongly, many solicitors perceive the LSC
and its procedures as the principal reason for abandoning legal
aid work. We believe that the Commission does need to develop
a more enabling approach to practitioners, welcoming and facilitating
their appropriate conduct of cases, consistently with its duty
to the public purse. The Commission should be especially receptive
to applications for emergency certificates from firms who, though
not possessing a housing franchise, may be the only accessible
source of legal assistance in the local area. Where an application
is refused on the merits, there should be provision for an appeal
in a matter of days rather than weeks: the present time scales
make it pointless to appeal in many cases, since the appeal will
come too late for a court hearing or for compliance with time
limits.
Can the requirement for legal aid be reduced by
the resolution of some issues on a more informal basis, through
the Citizens' Advice Bureaux, long distance services or otherwise?
24. We acknowledge the important role of
citizens' advice bureaux and other advice agencies in providing
accessible sources of advice and advocacy to those with housing
problems in their catchment area. We recognise that many tenants
are assisted to preserve their homes, for example, by the resolution
of benefits problems or by negotiation undertaken by advisers
with the landlord. A solution that avoids the need for court action
is nearly always in the client's best interests. But where court
proceedings have been started against the client, or where the
client's only remedy is to bring proceedings, a solicitor or barrister
will usually be needed to draft particulars of claim or defences,
to conduct the various steps in the action, and to represent the
client in court.
25. It is important to stress that most
people faced with court proceedings where their home is at stake,
or who are homeless, are unable to represent themselves adequately,
even with the best advice. The client, intimidated by the court
and by the landlord's legal representatives, will not be able
to do justice to their case without active casework intervention
and advocacy. Housing law is complex and court papers have to
be prepared in accordance with the Civil Procedure Rules; hearings
involve evidence and cross-examination, and issues of law and
discretion. There is simply no substitute for legal representation
in these circumstances. Court duty schemes, invaluable though
they are, are not sufficient: although some cases can be resolved
on the day, others have to be adjourned and the defendant referred
on to other sources of assistance.
26. Representation need not necessarily
be by qualified solicitors, and some advisers have extensive courtroom
experience. Much invaluable work is done by trainee solicitors
and para-legal advisers. In the main, however, representatives
will be working within a legal practice of some kind where they
will have support and supervision from solicitors. Advice agencies
are therefore an essential part of a network of legal services,
but where court proceedings are concerned they will usually wish
to refer cases to legal practitioners. The difficulty at present
is that there is often no-one to whom they can refer.
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?
27. This is not really a question on which
the Civil Justice Council can express a view. We do, however,
note the helpful discussion of the range of possible models which
service providers might take, in the Law Society's Consultation
Paper on the Future of Publicly Funded Legal Services (2003).
We agree that consideration should be given by the Inquiry to
alternative models of practice such as salaried services and law
centres, particularly in those areas where little or no provision
currently exists.
28. In summary, the problem of the decline
in legal services in housing and homelessness cases exists and
is set to worsen unless measures are taken to revive the specialism.
The challenge is to make housing work once again a viable career
option and to attract a new generation of housing lawyers to this
essential field of legal services. We wish the Select Committee's
Inquiry well and hope that it will make a difference.
Civil Justice Council, Housing and Land Committee
February 2004
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