Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Andy Brodie, Solicitor (LA 48)

1. I am a solicitor acting for housing associations (HAs) in possession and disrepair cases. My legal experience is below:

a. 1997 – 2001 Welfare Rights Adviser in Citizens Advice Bureaux

b. 2001 – 2004 Welfare Rights Adviser at regional advice centre

c. 2004 – 2005 Trainee Solicitor advising tenants on housing law at regional advice centre

d. 2005 Qualified as Solicitor

e. 2006 – 2007 Solicitor at national housing advice charity

f. 2007 - Solicitor acting for landlords in Legal 500 firm

2. This is a personal submission based on my experience in social security and housing law representing or opposing citizens receiving legal aid. It is not on behalf of any employer or client. It concerns legal aid scope for social security/ housing and the single telephone gateway.

3. Both social security and housing law concern redress for citizens against public authorities. In social security, this is challenging decisions by the DWP, HMRC or Local Authority (LA). In nearly all housing cases it concerns LAs or HAs. Few cases arise against private landlords as nearly all such tenancies are Assured Shortholds. These can be ended automatically under the accelerated possession procedure if court paperwork is completed correctly.

4. The main avenue of redress is litigation through social security tribunals or the county court. Providing legal aid to enable such redress will be even more important if proposals in the Localism Bill to remove direct access to the Local government Ombudsman (LGO) become law. The LGO provides an alternative to litigation in challenging bad practice or decisions in Housing benefit/ Council Tax Benefit decisions, LA housing disrepair and homelessness.

Scope – Social Security

5. I oppose the removal of social security cases from scope as their cost is modest and claimants will be denied justice.

6. Social security litigation takes place in an inquisitional environment. Time spent representing claimants there is already unpaid by legal aid. Under the current system, most appeals succeed and cost legal aid a fixed fee of about £170. This seems remarkable value.

7. Most cases concern illness/ disability, DLA/ ESA and how much personal care claimants need or what work-related activities they can perform. The usual appeal ground is that the official medical assessment has underestimated the claimant’s problems, and reason for success medical evidence obtained by the claimant tailored to the legal assessment criteria.

8. Unrepresented claimants are likely to be denied justice. They will not appreciate the highly technical award criteria, and be unable to obtain and bring tailored expert evidence to the tribunal. The tribunal will be deprived of such evidence. The inquisitional nature of the tribunal will not be able to overcome this, as it will have to weigh the expert evidence of the official medical assessment against the claimant’s non-expert evidence.

9. Many appeals concern mental health alone or in combination with physical illness/ disability when the effect of physical problems has created mental ones. One reason is that mental health issues are less unmistakable than say, a broken leg, and disputes and appeals more likely to arise. There is a contradiction in denying help for such appeals, as the ability to run one successfully denies the severity of the problem.

10. Removal from scope will also severely impact on CABx etc, who rely on such funding for much of their income. At worst this will lead to closure, and at best lead to dilution of supervision of volunteers by professional expert staff. It goes against aspirations to increase the involvement of local community organisations in service delivery.

Scope – Housing

11. I oppose removal of Illegal eviction damages actions. These are unusual, but provide a deterrent to criminal acts by landlords. The alternative deterrent is prosecution by LAs. extremely rare in my experience and often requiring cajoling and threats of a complaint to the LGO. With restrictions on LA spending, this will not improve. In any case the cost to public funds is likely to be small, as most such actions will succeed and include award of legal costs.

12. I support the restriction of disrepair cases to the most severe, if this is linked to availability of alternative redress via an effective complaints procedure concluding with an ombudsman. This would prevent abuses I currently see, where low value disrepair cases are pursued via litigation even though a complaints/ independent ombudsman procedure is available. This results in unnecessary legal costs claims against HAs. I think the restriction in scope should apply to cases where there is direct access to an independent ombudsman.

13. I support the continuing of legal aid for most possession cases, as tenants’ homes are at stake. There is scope for considerable savings if straightforward cases were moved to an inquisitional tribunal similar to social security tribunals. This would also be more suited to the usual participants –housing officers and tenants. Other cases that remain in the adversarial process of the county court should have simpler pre-trial directions.

Mandatory Single Telephone Gateway

14. This is potentially the most worrying proposal. If citizens cannot navigate this, then effectively everything is out of scope. Difficulties in tenants accessing representation delay court hearings and increase expense for HAs. There were considerable difficulties and hardship to claimants over several years, when the DWP introduced similar arrangements for new claims and Social Fund applications, as documented in reports produced by the CAB. It also contradicts LSC’s concerns about ‘referral fatigue’ that led to the requirement for providers to provide multiple areas of social welfare law.

July 2011

Prepared 7th September 2011