Concern over low take-up of free legal advice in eviction review

A worryingly low number of tenants facing eviction are accessing free legal advice when their case is being reviewed by a judge under revised arrangements for possession proceedings, it has been claimed.

New arrangements were introduced last September when possession proceedings resumed, including a ‘review date’ where a judge reviews the court file and sets a date for the substantive hearing. On the date of the review, duty scheme advice arrangements are in place to assist the tenant and promote settlement.

However, Simon Mullings, co-chair of the Housing Law Practitioners Association, told a Legal Action Group conference last Friday that take-up was too low.

Mullings said the requirement for landlords to send the court an electronic copy of all the case documents, and confirm that these have been sent to the tenant, at least 14 days before the review was a ‘positive innovation’. However, he said: ‘One thing coming out of the new arrangements is that take-up of duty advice on the review date is unfortunately too low.’

Mullings suggested duty advisers should be allowed to proactively contact tenants. He acknowledged data protection issues, but pointed out that the idea ‘has not been looked at all’.

In February, the government began piloting mediation as part of the current court process for possession cases. If an agreement is not reached at the review date, the case can be referred for mediation – but only if both the landlord and tenant agree. Mediation happens on the referral of a duty adviser.

Mulling was ‘sceptical’ about the pilot but could see ‘massive value’ in the fact that mediation must be preceded by legal advice to the tenant. ‘That’s an opportunity to bear in mind when we come to looking at the future of possession proceedings,’ he said.

The revised arrangements were drafted by a working group convened by the master of the rolls, which is now looking at next steps for possession proceedings.

With ‘practical changes in this area coming at us fast’, Mullings has been liaising with groups representing tenants and borrowers to develop a ‘five-point plan’ to inform future arrangements.

On adjudication and mediation, the draft plan says: ‘Housing possession law is complex to the point of absurdity. Defendants are, moreover, the party most prejudiced by economic uncertainty and downturn. Our view is that one cannot fairly deal with that complexity and prejudice without judicial oversight and adjudication where necessary, and that oversight and adjudication must be in a rules-based court setting with the opportunity for both parties to be heard and ideally with advocacy to even up the power imbalance between the parties.’