Further evidence submitted by the Housing
Law Practitioners Association (HLPA) (LAR 81a)
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. It has existed for over 10 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 (by
primary and subordinate legislation and also by other means such
as relevant codes) by the relevant Departments, chiefly the DCLG.
The Chair of HLPA, Vivien Gambling, and the
Chair of HLPA's Legal Aid Working Group, James Harrison, are experienced
housing specialists and a partner in a leading firm of solicitors.
Although the Association is London based, the membership is countrywide.
The Association is also informally linked with similar Housing
Law Practitioners Groups in the North-West, South Yorkshire and
the West Midlands.
Membership of HLPA is on the basis of a commitment
to HLPA's objectives. HLPA's objectives are:
— To promote, foster and develop equal
access to the legal system.
— To promote, foster and develop the
rights of homeless persons, tenants and others who receive housing
services or are disadvantaged in the provision of housing.
— To foster the role of the legal process
in the protection of tenants and other residential occupiers.
— To foster the role of the legal process
in the promotion of higher standards of housing construction,
improvement and repair, landlord services to tenants and local
authority services to public and private sector tenants, homeless
persons and others in need of advice and assistance in housing
provision.
— To promote and develop expertise
in the practice of housing law by education and the exchange of
information and knowledge.
Further information on HLPA can be found at
www.hlpa.org.uk
HLPA RESPONSE ON
PROPOSED STANDARD
FEES FOR
HOUSING WORK
(REPLACING THE
TAILORED FIXED
FEE SCHEME)
In this paper we comment specifically on the
likely effects of the proposals on people in need of housing advice,
principally the effects of the proposed system of a national standard
fixed fee, and the level of proposed standard fee for housing
cases (£171 excluding VAT and disbursements).
Our Survey
1. HLPA has conducted a survey of its members
in order to assess the response of members to the proposals of
standard fixed fees in housing cases and other proposed changes
to the legal aid system. The results are attached. The results
suggest that the proposals will have an adverse impact on quality
of advice in housing cases, and create disincentives to take on
more complex cases or to assist the most vulnerable clients. 94%
of respondents say that under the proposed scheme of standard
fixed fees there will be a disincentive to undertake more complex
cases or to assist the most vulnerable clients. 87% of respondents
say the proposals threaten quality.
2. The results of HLPA's survey illustrate
a looming crisis in that 58% of respondents to the survey are
considering leaving publicly funded housing work or have colleagues
who are doing so. 49% of respondents do not expect to be providing
housing advice in two years' time.
Scope of housing advice and representation
3. Housing work includes the following types
of cases:
— those faced with possession proceedings
on various grounds eg rent arrears, alleged nuisance or anti social
behaviour;
— those whose right to succeed to a
tenancy on the death of the tenant is disputed;
— those who are literally homeless
to whom the local authority may have housing duties; this includes
16 and 17 year olds, those with dependent children or who are
in priority need due to medical or other reasons;
— bringing disrepair proceedings against
eg local authorities, housing associations and private landlords;
— applicants for asylum who are eligible
for asylum support;
— people in need of housing or other
community care assistance from social services;
— those who have been unlawfully evicted
or who have been threatened with unlawful eviction; and
— A good proportion of cases involve
emergency work; clients may contact us a few days before they
are due to be evicted or following eviction. Many of our clients
are poor and many are further disadvantaged or vulnerable due
to physical or mental ill health, or they have come to the UK
from war torn countries; some have had troubled upbringings, drug
addiction, poor education or other problems.
4. Some cases are resolved under the legal
help scheme; other cases proceed to representation under a legal
aid certificate; most cases are in the County Court, but we also
bring cases for judicial review in the High Court (Administrative
Court) and a very few cases proceed to the Court of Appeal.
Our comments on proposed standard fixed fees
5. To reduce fees for legal help cases to
a standard fee, which for many suppliers of housing advice will
mean a 30% to 50% cut on their existing fees, is likely to cause
many more suppliers to drop out. The Legal Services Commission
should think again and defer any such drastic steps at least until
the system of peer review is in place and until the Legal Services
Commission knows how many suppliers are likely to remain, and
until further detailed research is carried out on the impact of
the proposals on services.
6. It is now widely acknowledged that people
who are represented in, say, possession proceedings, are far more
likely to avoid losing their homes. The social consequences of
eviction, including the effects on children's schooling, health
and wellbeing, are far-reaching.
7. We understand that the LSC has based
the level of standard fees by taking an average figure for all
suppliers of whatever type providing advice in a particular category,
such as housing which covers a broad range of types of cases.
8. The tailored fixed fee scheme takes account,
albeit crudely, of the fact that there is a great diversity of
providers and diverse portfolios or case mix of the type of cases
that they do. For example, some NFP organisations run advice sessions
and may sign up those clients seen in an advice session under
the Legal Help Scheme; this provides a valuable service, giving
initial advice and limited follow up work, which could include
referring a case to a specialist solicitor. This provides a service
but of a very different nature and purpose from specialist advice
which is more likely to be done by solicitors in private practice
or law centres.
9. We believe that it is wrong to lump together
all providers and take the average fee, because of the great diversity
of such providers and the type of work they do. The Legal Services
Commission seeks to justify standard fees by responding that they
want all providers to provide advice "across the range"
so that in theory each provider would have the same proportion
of eg advice on rent arrears, disrepair, homelessness cases and
housing transfers. The Legal Services Commission claims that this
(ie whether providers had a case mix according to the prescribed
model) would be monitored through a process of peer review. That
proposition is completely unrealistic and unworkable. It takes
no account of differing local needs and changing needs in any
geographical area.
10. It is neither realistic, achievable
or desirable for all suppliers to have the same composition of
cases. We question what benefit will be served by requiring eg
an organisation to undertake a proportion of complex homelessness
cases, when they may not have the expertise to do so. Conversely,
it is not desirable to force specialists to reduce the number
of complex cases they do and turn away clients, simply in order
to maintain a profile of cases which is supposed to include a
proportion of "lower level" cases.
11. The LSC stated in September 2006 that
the tailored fixed fee scheme had worked well for the Legal Services
Commission and for suppliers. No coherent logical justification
has been given for ditching the tailored fixed fee scheme for
legal help work and moving to standard fees. We consider that
the system of tailored fixed fees is fairer and more likely to
be consistent with improving quality of work through a system
of peer review. However there should be built into the system
inflationary increases in the rates, and the system needs to be
flexible so that, if appropriate, a supplier's fixed fee can be
increased to reflect a changed pattern of work eg if the provider
takes on significantly more complex (and time consuming) cases.
Effects on quality and access to advice
12. The imposition of low standard fees
goes against the whole ethos of improving standards through peer
review, and will greatly undermine that process.
13. Low level standard fees do not take
into account the complexity of cases and may well lead to a denial
of access to justice and discrimination against the most vulnerable
clients. A system of standard fees will mean that there is no
incentive on providers to take on complicated cases or clients
who are likely to be more time consuming, such as clients with
physical or mental impairments or those who need an interpreter.
Thus the system is likely to lead to discrimination against people
with a disability or those for whom english is not their first
language. The Legal Services Commission might argue that firms
will be monitored. However, in practice we think it extremely
unlikely that the system of peer review or any form of monitoring
would be able to prove that a disabled or vulnerable client, or
a client who does not speak English, has been turned away. Standard
fees are likely to have an effect even on the most well-meaning
providers; at the very least it will affect decisions on the margins.
In practice advisers often feel that they have no capacity to
take on more work, because of demands of an existing caseload.
Objectively it may be reasonable to say "I am too busy"
because of existing workload whereas without the disincentives
inherent in the proposed scheme, the individual might have been
prepared to stretch themselves and their workload for the sake
of a client in real need.
Distinguishing Homelessness cases and other case
types
14. If there are to be standard fees then
we consider that the system should be less crude. Further work
needs to be done to establish the costs of different types of
cases; in the housing context, homelessness cases often require
a lot of work.
15. Currently homelessness cases form a
significant part of the work of specialist housing advice providers.
Theses cases involve intricate areas of law; case law is continually
developing. A large proportion of such cases, done properly, take
8-10 hours which would far exceed the proposed standard fee but
would fall below the exceptional "three times" threshhold.
16. The steps you need to take when advising
a client in a homelessness case typically include the following:
— Initial meeting with client—usually
1½ hours; this could be longer if an interpreter is required.
— Drafting letter of advice and statement—1
hour.
— Writing to local authority to request
copy of housing file—6 mins.
— Considering copy of housing file—30
minutes-1 hour depending on its length.
— Obtaining obtain medical or other
supporting evidence—preparing letter of instructions and
considering report—say 30 minutes-1 hour.
— Further meeting with client to obtain
client's comments on the housing file and other documents, say
30 minutes to 1 hour.
— Preparing letter making detailed
representations—30 minutes-1 hour.
— The local authority often sets out
its views in a detailed letter inviting comments and further representations
before they make their final decision; to fail to answer would
damage a client's case.
— Decisions on homelessness reviews
by the local authority are often lengthy, from 3-8 pages long;
it is necessary to consider the decision and if the review has
been unsuccessful, we have to consider whether there are grounds
to appeal against the decision and if so, we have to prepare an
application for public funding—say—1-1½ hours.
— Homelessness cases often involve
related issues; eg the need to advise and make representations
if the local authority stops a client's temporary accommodation;
in the case of a negative decision, representations to get the
local authority to provide advice and assistance and/or to provide
accommodation through a rent-deposit scheme—this could increase
by 2-3 hours the time spent on the case.
17. If one of the aims of the LSC is to
tackle social exclusion, then homelessness cases need to be treated
differently than under a standard fee scheme. At times the LSC
has recognised the complexity of homelessness cases (eg at one
stage prior to the implementation of the tailored fixed fee scheme
homelessness cases were to fall within the Controlled Legal Representation
Scheme, on a [higher] payment rate similar to mental health cases,
but then the system changed to the tailored fixed fee scheme.
Under the tailored fixed fee scheme an extra £31 could be
claimed for advising and assisting in homelessness reviews; while
this extra payment was in our view much too low, it was based
on the principle that homelessness cases are complex, usually
take longer than other cases and deserve to be treated differently).
18. To give another example, a reduced standard
fee is likely to have a big impact on advice given to clients
bringing small disrepair claims themselves (in cases where public
funding and therefore representation is not available). Many clients
cannot deal with such cases themselves without advice and assistance
through the process.
19. Yet another example concerns possession
proceedings for rent arrears. The Rent Arrears Protocol which
is due to come into effect is likely to mean that a greater amount
of work is done under the legal help scheme.
The picture of housing advice providers
20. The number of solicitors providing eg
housing advice has dramatically fallen. The number of solicitors'
contracts in the category of housing fell from 799 in March 2000
to 421 in August 2005. The number of NFP agencies with contracts
in housing has risen by far less from 115 in March 2001 to 159
in August 2005. The number of housing new matter starts for solicitors'
contracts in 2004/ 2005 was 51,778 compared to 32,439 for NFP
agencies; if solicitors are unable to carry on doing this work,
this will have a drastic effect on the provision of housing advice.
There is no evidence that the NFP sector has the capacity to take
on the amount of housing advice currently done by solicitors in
private practice.
21. To introduce standard fixed fees would
also have a drastic impact on the provision of housing advice
currently delivered by NFP organisations. Many NFP organisations
are dependent on other sources of funding which in effect usually
subsidise the legal help work.
Complexity—use of non qualified paralegals?
22. Housing law is complex and does not
lend itself easily to employing paralegals to do the work. It
is the experience of members in private practice that paralegals
need a high level of supervision; often they want training contracts
so only stay for 1-2 years and the investment in training and
supervision is high. Paralegals who want experience in order to
assist them to obtain a training contract (or not) can earn more
in other areas of work and also can usually earn more in NFP organisations.
Standard fees are theoretically based on an hourly rate of less
than £50 per hour (as letters and telephone calls are based
on a lower rate than eg attendances). When working up to speed
(after a period of training) and if you manage to retain them,
a paralegal doing legal help work is unlikely to bring in income
of more than £50,000 maximum (1,000 casework hours multiplied
by a notional £50 per hour), but in our experience would
take over a year to reach that level. In the meantime their salary
has to be paid. The income of £50,000 would not cover salary,
rent, training and other overheads, and the cost of supervision
by a specialist.
23. We question how much money will truly
be saved in administration terms by a system of standard fees
as opposed to tailored fixed fees, unless the Legal Services Commission
gives up monitoring how much time firms actually spend on cases.
In any event the burden of much administration in terms of record
keeping etc falls on solicitors' firms and other providers.
National/regional fees—the case for London
weighting
24. Of the two options, national or regional
standard fees, we consider that regional fees are fairer. Overheads
are higher in London, including rent and salaries. Also cases
tend to be more contentious eg local authorities take a harsher
line in housing cases because of the shortage of accommodation.
There is a disproportionate number of London local authorities
against whom homelessness judicial review cases are taken in the
Administrative court, which suggests a higher number of homelessness
cases or a tougher line generally taken by London authorities.
There are in general likely to be a greater proportion of possession
proceedings and applications to suspend warrants of possession
(where advice and representation may be completed under the Legal
Help/Help at Court scheme) compared with areas outside London.
Highly regarded experienced housing practitioners in London have
said they will stop doing legal aid work if the proposals for
standard fees in housing cases are implemented.
SUMMARY
25. Comments of our members and experience
indicates that the system is near crisis point. There are real
difficulties in recruiting good housing lawyers. This is the experience
of many firms who currently specialise in housing work. Private
practice firms are less willing to subsidise loss making legal
help work and standard fees may be the breaking point. Specialist
"niche" firms who only do publicly funded housing work
have had no cushion. NFP organisations face difficulties and likely
loss of income from standard fees and will not be able to make
up the gap when private practice firms drop out.
January 2007
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