News focus: Remodelled emergency legal aid housing scheme not yet fit for purpose

Much is happening in legal aid, but one important issue that has gone under the radar is the government’s plan to remodel its emergency scheme for tenants facing eviction.

The Ministry of Justice’s consultation on its ‘ambitious new model’ to provide emergency advice and advocacy to people facing possession proceedings closed last month.

Justice minister Lord Wolfson describes the proposals as a ‘first step in our wider civil legal aid strategy to ensure a sustainable system of provision where people can get the right advice at the right time, leading to better outcomes for all’. While representative and practitioner bodies welcome the government’s ambition, the consultation responses convey deep scepticism.

The MoJ proposes a new housing loss prevention advice service (HLPAS), consisting of two stages: early legal advice and an in-house court duty scheme.

'By the time a landlord has served a notice seeking possession, their tenant dispute has long passed early stages. HLPAS needs to be triggered at an early enough point to make a difference to the underlying problems'

Law Centres Network 

In stage one, practitioners would be paid a fixed £157 per client to provide early legal advice in social welfare law to tenants facing possession proceedings. In stage two, which would operate in the same way as the current court duty scheme, practitioners would be paid £75.60 per client seen in London and £71.55 outside London.

But whether this service constitutes early advice is debatable. ‘By the time a landlord has served a notice seeking possession, their dispute with their tenants has long passed early stages,’ the Law Centres Network said in its response. ‘HLPAS needs to be triggered at an early enough point to make a difference to the underlying problems, for example benefits miscalculation. Even at the earlier trigger point for HLPAS, an underlying benefit problem that needs to be appealed would not manage to be heard before the possession hearing date (between 4-8 weeks from serving the claim), not even now that the social security and child support chamber has worked down its backlog to half its pre-pandemic length.’

The Law Society says the £157 fee is insufficient. ‘In disputes over housing benefit entitlement there are likely to be extremely complicated case histories that require careful analysis to identify periods of entitlement, particularly where the client is self-employed and/or in precarious employment and does not have a regular pattern of working. Such cases necessitate a lengthy session with the client just to diagnose the problem and identify legal solutions.’

The proposed in-court attendance fee is welcomed but, again, is insufficient.

The Society says: ‘We estimate that to compensate providers adequately for attending a session the attendance fee should be equivalent to seeing four clients, which is £302.40 for London and £286.20 outside London. We note from the impact assessment that doubling the fee from the equivalent of seeing one client to the equivalent of seeing two is estimated to cost an additional £30,000 per year, so increasing it to the equivalent of seeing four clients could be achieved for a modest additional sum of £90,000 per year. We believe this additional sum may make schemes in more remote and low-volume courts more attractive.’

The Law Centres Network says the current proposal offers an experienced housing lawyer around £300 for a full day’s work. ‘The average cost of employing a law centre caseworker is currently between £75-£85 per hour, varying by seniority and location. Even if they only bill for five hours’ work out of a seven-hour workday, this caseworker would need to bill for £375-£425 a day just for the law centre to not make a loss on their time – and other providers would have still higher break-even thresholds.’

Who would provide the service? The network says welfare benefits and debt work have been largely out of scope for so long that most providers lack specialist staff to handle them at scale once again.

But the whole consultation is effectively meaningless if the government extends fixed recoverable costs to housing cases, according to the Housing Law Practitioners Association.

Writing for Legal Action Group, co-chairs Marina Sergides and Simon Mullings said: ‘The provision of free legal advice in housing is essential to ensuring that people live in adequate accommodation, that vulnerable families are not evicted and that the law is followed by private and social landlords. Without this, local authorities will face an avalanche of homelessness applications and the court service will grind to a halt. Free legal advice would be unsustainable without the ability to recover reasonable costs (as opposed to fixed recoverable costs) in possession and other housing cases in relation to successful defences.’

The government should be applauded for realising that housing issues must be viewed holistically. But if it wants to create a sustainable system, it needs to listen to the experts and make the necessary alterations.