Legal aid housing deserts appearing as providers pull out
Image: Locked out by Jared Rodriguez/Truthout at Flickr
A young mother flees her home after a warning by police that her partner, who has assaulted her, might return and attack her again.
Frightened for her safety, she hands in notice to her housing association landlord and moves to a town some distance away, leaving her five-year old daughter with a cousin and her belongings in the flat.
The police call a few days later to say that her partner is in jail on remand and she can return.
She moves back to her flat as she is still in her notice period but the housing association insists she has ended her tenancy and cannot stay.
In court the young mother is helped by housing support workers but has no lawyer.
Up against her, representing the housing association, is a solicitor armed with a file of legal notes five inches thick.
If this were fiction, the young mother would win out.
But this is real life in Suffolk in September 2014.
The lawyer easily convinces the judge to approve the eviction and she has to move out.
She and her daughter are currently living in temporary accommodation.
Last housing practice closes
The young woman is not an exception. Increasingly people on the edge of eviction are appearing in court with no legally-qualified representation, and having had little, or at least insufficient legal advice before their appearance.
The legal profession has long warned that declining fees for legal help would put lawyers out of business – cases are paid at a fixed fee of just £157.
More recently, reforms to the scope of legal aid have also taken their toll on housing practices.
Housing cases no longer attract legal aid,unless a client is homeless, their home is at immediate risk or it is in such a state of disrepair that their health is being threatened.
Advice relating to most mortgage possession actions, benefits, nuisance, tenancy deposits and most repair issues, have all been excluded since April 2013.
Since then at least 38 housing advice providers have withdrawn from the legal aid market and a further eight have given notice on their contracts.
This has left almost a fifth of the LAA’s procurement areas (regions used by the agency for contractual purposes) with just one law firm or not-for-profit organisation taking housing cases – and some, like Suffolk, with none at all.
Kerseys was the last provider in Suffolk offering legal aid-funded housing advice. It closed its practice in March.
“Around three years ago we were doing 150 cases per year,” says Anthony Wooding, the firm’s housing specialist.
But after client numbers plummeted, it was no longer possible to continue.
“We were having to keep up a fairly high level of expertise for a diminishing number of clients and it reached a point where we just couldn’t justify carrying on,” Wooding explains.
This apparent lack of demand makes little sense given that Ipswich was identified in May 2014 by homeless charity Shelter as an “eviction and repossession hotspot”.
According to Shelter, 1 in 79 homes in the city were the subject of a repossession claim in 2013/14.
As well as the 2013 cuts, Wooding puts the reduced client flow down to simpler cases being fielded by national telephone helplines and not-for-profit organisations.
For some time, not-for-profits in Suffolk have been successfully managing housing cases which would once have been referred to a legal aid lawyer.
When the 2013 reforms drastically reduced the scope of legal aid for housing cases, it was these organisations that picked up the pieces.
Sent to get legal advice
No-one will ever know if the young mother, Kayla (not her real name) would have won her case if she had been advised and represented by a housing lawyer.
What is known is that the judge who presided over her first possession hearing at Bury St Edmunds county court on September 26 sent the parties away to seek legal advice and assemble skeleton arguments.
Kayla would have been eligible for legal aid as she had lost her job after moving away.
But no lawyer ever came close to her case.
There may have been scope for a human rights or public law defence given the circumstances of her departure.
These areas of law are complicated and cases are difficult to win; they are far beyond the expertise of generalist advisers.
Kayla was assisted by SNAP, a housing support service, which had successfully negotiated with the benefits agency to cover her substantial arrears.
Her support worker was completely unaware of the national Civil Legal Advice service, a national telephone helpline that makes referrals to legal aid lawyers.
“To be honest I’ve never heard of it,” he says.
SNAP sought legal advice from Suffolk county council’s professional adviser service which provided – without having seen details of the landlord’s case – a skeleton argument for SNAP to submit to the next hearing.
On the day of the final hearing the landlord, Suffolk Housing, was represented by a solicitor, who cited case law to show that the form Kayla had completed was a valid notice ending her tenancy and that this could not be revoked.
Although “duty solicitors” operate in most county courts on the days possession cases are heard, no-one was available to advise Kayla on that day.
The SNAP workers presented the full circumstances surrounding her case as well as presenting the professional advisers’ skeleton argument. They argued that the notice was invalid because of incorrect dates on Kayla’s notice form.
The judge, convinced by the housing association lawyer’s arguments, disagreed with them. Flummoxed and without case law to hand, SNAP was unable to counter the other side’s reasoning.
“I was completely out of my depth,” says one of the support workers who attended the hearing.
Six month wait
If Kayla’s advisers had telephoned the legal advice line she would probably have been referred to Norfolk or Colchester – 40 minutes to an hour’s drive away.
Despite the lack of local alternatives, it was nine months after Kerseys gave notice on its contract before the LAA advertised for a replacement in September 2014.
The agency did offer a Norfolk solicitors’ firm outreach work in the county but the firm, Allan Rutherford, rejected the offer because it would have meant doing less work in Norfolk.
Each provider with a legal aid contract is allocated a certain number of cases. If it exceeds this figure, the LAA will not pay for the excess work done.
According to Michael McNally, a housing lawyer at Allan Rutherford, the LAA refused to allocate the firm extra cases for Suffolk, saying that if it wanted to expand into Suffolk it would have to use its current Norfolk allocation.
“The LAA also refused our travel expenses to travel to Suffolk. Because of these two reasons, it was not viable for us to accept the contract,” McNally says.
When the Agency did put the Suffolk legal aid contract up for tender it abandoned its own guidelines on contractors.
It invited organisations to apply that were “not able to fully meet” the usual requirements for these contracts.
Providers must normally have a “permanent presence” in the region and caseworkers must be supervised by a lawyer with a specified level of recent experience in housing cases.
Housing lawyers disappearing
Experiences like Kayla’s are likely to become more common as more housing specialists disappear from the legal landscape.
Sara Stephens, who convenes the legal aid working group of the Housing Law Practitioners Association, says that while support agencies are invaluable, they cannot be an adequate substitute for specialist legal advice and representation from qualified housing lawyers.
“Housing law can be complex; the law is constantly changing as new legislation is brought in and case law decided,” she says.
An academic paper presented at a conference on access to justice in London in June also raised concerns about the quality of generalist advice from not-for-profit organisations.
A solicitor quoted in the paper by Professor Susan Bright of Oxford University and Dr Lisa Whitehouse of the University of Hull, said: “We do pick up cases that have been through the hands of well meaning advice agencies that just haven’t spotted the potential legal defences.”
However, Wooding says that non-lawyers can handle most cases and just need to be “topped up” with legal specialists.
“The agencies I have come across do provide a high standard of advice,” Wooding says. “It is just that unsurprisingly they are not so good at the hard law.”
Funding not assured
SNAP, which handled Kayla’s case and Flagship, a housing association that offers a similar service to SNAP specifically for the Waveney district of North East Suffolk, accept referrals from more than 200 organisations including Citizens Advice and Shelter.
But without lawyers involved in the service, SNAP and Flagship cannot access legal aid funding. Instead they have to rely on local authority cash.
SNAP has not had its funding increased for five years and is coming under huge strain due to rising numbers of people needing help.
“In the last 18 months we’ve seen close to a 30% increase in referrals to our service,” says SNAP’s service manager Dan Bristow.
“The waiting list is currently at around 150 people.”
He adds: “It’s getting to the stage where we are only helping people who are absolutely desperate whereas in the past we’d try to avoid them reaching that state.
“Our entire raison d’etre is to prevent people getting into desperate circumstances.
“It would save costs for a lot of other bodies if we were able to intervene before people were at dire risk of losing their homes.”
Yet SNAP’s survival is not assured.
“We are not certain what will happen after March 2015 when our current contract ends. We may yet become another service that goes by the wayside.”
Court duty scheme
The “last line of defence” for those whose homes are at risk is meant to be the”duty solicitor”.
In most county courts legal aid funded duty schemes are provided for people who turn up to defend a housing possession or eviction case without representation.
However the Bright/Whitehouse research found that provision of duty solicitor service was inconsistent across the country, quoting one judge as saying: “We don’t know who’s turning up and then some weeks nobody turns up at all.”
The research paper also noted that a lack of of housing and debt specialists meant that duty advisors were becoming the “last and only source of advice for occupiers” and that the scheme had the potential to be used as a “fig leaf to hide a lack of more substantial – and expensive – representation.”
In Suffolk, the Ipswich County Court Advice and Representation Service (ICCARS) also offers a duty advice scheme., but does not have legal aid funding and is run mainly by experienced volunteers from Suffolk County Council, with the occasional trainee solicitor taking part.
Graham Sharp, an ICCARS duty adviser and council welfare rights officer with a background in housing, says success rates in terms of preventing possessions on the day have been much the same whether qualified lawyers were involved or not.
The real issue, he says, is access to specialist advice after the hearing.
“The problem is that in complex cases where follow-up work is needed, this often requires legal representation, and it’s not at all clear where that’s going to come from,” he says.
One very recent case – an eviction by a private landlord – involved a claim for arrears by the landlord and a possible counterclaim by the tenant on the grounds that the property is not fit to live in.
Sharp successfully persuaded the judge to give the tenant two weeks to prepare a proper defence to the eviction and obtain an environmental health assessment of the property.
He called the Civil Advice Line and was referred to Shelter, 50 miles away in Norwich.”If she is not able to get the help needed, I will assist her with putting together a defence,” he says.
Shelter did take on the case and he has heard nothing further since.
Pattern repeated elsewhere
While Suffolk is an extreme example, there are barriers to accessing housing advice all over the country.
Research by the Bureau of Investigative Journalism has established that last year just 55% of available “legal help” on housing – which covers advice but not representation – was taken up. This seems extraordinary when landlord repossessions are at a five year high.
What is clear is that there are fewer firms offering legal aid assistance. The LAA has struggled to find local providers to take on contracts in several areas of the country, forcing the agency to waive the “permanent presence” requirement.
In East Riding of Yorkshire the contract was awarded to a not-for-profit organisation, Keyhouse, which operates on a fortnightly basis from a Citizens Advice Bureau (CAB) in the region but is based in North and West Yorkshire.
Rural Dorset is serviced by a Hampshire firm and Shropshire residents by one in Wrexham. Both provide advice via CABs, subject to demand.
The Wrexham firm, Allington Hughes, told the Bureau in October that its housing lawyers had last been to the CAB in August and that there was no demand for more frequent visits.
Colin Henderson, a housing solicitor covering courts in Cumbria and North Lancashire, says the outreach approach has been tried previously in his region with limited success.
For the system to succeed requires the advice agency “hosting” the legal aid contractor holder to spot potential cases, assess the client for financial eligibility and drum into them to bringing proofs of income.
Typically, the advice agency then makes an appointment at the next surgery when the housing specialist will attend.
“The main problem is ‘no-shows’ because our clients usually attend at the last minute and need urgent help, not an appointment in a week’s time – obviously it’s no good if the eviction is before then,” says Henderson.
“Housing providers need to offer local, drop-in, face-to-face help and if they don’t, he says, “the case numbers inevitably fall away”.
More areas are likely to be serviced by outreach contracts in future.
Long distance
The LAA divides England and Wales into 134 areas. In 23 of these there is now only one housing provider.
Until two years ago Shelter’s office in Taunton had a legal aid contract but after it closed, Alletsons in Bridgwater was left as the only adviser covering most of Somerset.
Alletsons lawyer Ben Davies says: “We are allowed to provide advice by post and telephone if we have the right forms and evidence of [financial] means sent to us by the prospective client.
“But a lot of these clients who are facing eviction are in that position because they are not organised – they are struggling to cope. They are not able to fill in a form and collect the evidence they need and return it to us.
“So we have a chat by phone, ascertain the legal need, send the forms off to them and never get them back.
“The theory is that it doesn’t really matter where the advice centre is but in reality it does matter.”
In Cornwall, two housing practices have closed in the last year, leaving just Shelter’s Truro branch remaining.
Shelter has made “hardship payments” to enable people to reach the office from the furthest reaches of the county, but in the first quarter of 2014/5 it only carried out 13 legal aid housing cases, the Bureau’s data shows.
Lack of awareness
The recent seismic changes to the legal advice market, with law firms and not for profit advice agencies closing in some areas and competing in others, have disrupted long-standing referral networks.
Steve Hynes, director of campaigning charity Legal Action Group, says cuts, low fee levels and lack of awareness of legal aid are creating a kind of feedback loop, leading to ever-decreasing access.
“It is now more difficult to obtain legal advice, there are fewer lawyers offering it, there are more bureaucratic hurdles meaning even more lawyers get out of legal aid, making the ones that are left even harder to find – it’s a downward spiral,” he says.
Law firms have never been very good at referring people on if they can’t help and some advice agencies are the same, he adds.
“Most people depend on referrals from friends, neighbours, someone they met in the pub. But no-one knows where to go now.”
In their place is the Government’s Find Legal Advice website. The Ministry of Justice says this is regularly updated but that it relies on providers to inform it of changes. The Bureau found the site included firms that had closed and some other providers’ phone numbers were out of date.
The site also includes firms that will not take clients from the location entered unless all the legal aid contract holders for that area have turned them away first.
Also on offer is the Civil Legal Advice line and Shelter’s helpline – national telephone services which provide advice and refer people who need more detailed help to a legal aid lawyer.
Data obtained by the Bureau shows that of 46,870 housing cases begun in 2013/14, 11,271 or 24% were managed over the phone.
But academic research has questioned how well legal advice lines serve the most vulnerable.
Colin Henderson says: “It’s not uncommon for clients to attend court with just a letter from the telephone adviser that doesn’t reflect reality.”
He has also come across cases that have not been referred by telephone advisers to lawyers for face-to-face advice and representation even when that was appropriate.
Case study: Vulnerable unable to access legal advice Malcolm Woodward, 60, attended Gloucester County Court on October 16, 2014 to defend an eviction for rent arrears from the council house he shares with his wife and four children. “My housing benefit was stopped in May. My wife went down the council and they said they hadn’t received the forms I sent,” he says. Woodward has been on benefits since 1995 because of a back injury sustained when he fell down a man-hole. His wife works in the local supermarket. After receiving an eviction letter he approached a local law firm, which referred him to Shelter’s advice line. He received letters from Shelter, but had not had a face-to-face meeting with any advisor before the court hearing. On the day of the hearing, he says he received a call from the council’s representative who was ringing to see if he would be attending. “I told him about Shelter and he said I didn’t need to bother with that,” he says. The court referred Woodward to duty solicitor Anne Whitworth, who arranged for the eviction to be adjourned.
Human rights
Housing advice cannot be removed from the scope of legal aid altogether because of human rights legislation.
But the removal of most housing work from the scope of public funding, low fees, lack of awareness and means testing have reduced both the number of providers and the flow of clients to those remaining.
This has created an impression of a lack of demand, potentially justifying further cuts.
Hynes says: “The government’s only priority seems to be to reduce the legal aid budget, through the ruthless pursuit of a strategy which cuts what cases legal aid will pay for, creates bureaucratic hoops for practitioners to jump through to secure legal aid for the cases which remain in scope and by a squeeze on fees which undermines the economic viability of the firms which remain in the system.
“The biggest losers in this are the public. Obtaining civil legal aid has been reduced to a lottery.”
A Ministry of Justice spokesman said:
“Publicly-funded housing and debt advice is available across England and Wales. We have prioritised funding where someone is at immediate risk of homelessness or where disrepair is seriously threatening their health.
The Legal Aid Agency takes prompt action if a gap in service is identified and has a good track record of quickly securing provision.
“As well as face-to-face services, advice is available via a number of dedicated websites and helpline.”
The LAA has identified a provider to cover Suffolk and is currently in the final stages of negotiations, the spokesman added.
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