Housing and Access to Legal Aid

Ellie Reeves Excerpts

Wednesday 16th May 2018 Westminster Hall

[Ruth Cadbury]

My hon. Friend is absolutely right. The cuts to local authorities and other parts of the public sector have affected the voluntary sector, which has so often been the alternative provider of professional, consistent, good-quality advice and support to people who need it.

There is currently no law centre in my area. When I was a lead member on Hounslow Council in 2010, we increased the funding for the citizens advice bureau, but demand for the local CAB escalated well beyond that. The philanthropic centres and foundations—the Big Lottery Fund and so on—are often left to pick up the pieces, but pressures on their funding are getting greater. Overall, less good-quality professional help and advice is available in the sector, and I urge the Government to address that as part of their review, which I will move on to in a moment.

As I was saying, MPs and councillors are not professional legal advisers. At best we should signpost and provide basic advice, but we do not have the capacity or skills to provide the detailed advice that people need, even at the early stages of problems arising. I will give a couple of examples that Vicky Fewkes of the Ealing law centre provided me with. They concern people who much of the time were not eligible for housing legal aid. In all cases, the welfare and benefits work that was done was under grant funding, not legal aid.

First, a constituent was in substantial rent arrears due to universal credit issues. Her tenancy was jointly in her name and that of her partner. However, she had been abused by her partner, which led to their separating and her partner moving out. Universal credit would not pay her full rent due to the tenancy being in both names. She was given time to transfer the tenancy into her name and resolve the universal credit issues. The adviser worked with her and managed to resolve the matter, and to retrieve about £5,000 in universal credit housing payments. She kept her home—at substantial cost to the public sector, of course. That case was not funded through legal aid, but I believe it should have been.

In another example, a constituent was in arrears of more than £2,500 following the stoppage of her employment and support allowance and housing benefit. She had four children, aged between 11 and 19, and she suffered from depression, anxiety and physical problems. Her housing benefit had been cancelled due to the required information not being supplied. The caseworker worked with her and her husband to claim backdated housing benefit. The caseworker liaised with the council and worked with the husband to answer all the council’s questions and provide the required evidence. The hearings were adjourned until the ESA and housing benefit issues could be resolved. The ESA decision was appealed and overturned, meaning that she eventually got a backdated ESA payment and £4,000 in housing benefit being paid into her rent account, meaning that she kept her home. She was a council tenant. If she had been a private sector tenant, that landlord would not have waited for her income situation to be resolved.

Vicky says of the crisis navigator role at the Ealing law centre:

“The Crisis Navigator is part of a Big Lottery funded Help through Crisis Project. This work is essential and is not being funded by Legal Aid as it stands at the moment. A lot of problems arise from insecure work (variable hours/zero contracts). These then impact benefits and rent arrears as a result. If clients are evicted if they are housed by local authorities, then the temp accommodation rent is so high and Housing Benefit is being paid for this.”

In my area, west London, housing benefit caps are well below the rent even for poor-quality private sector housing. Finally, Vicky says:

“It really would make sense to provide benefits support at an early stage.”

The Legal Aid, Sentencing and Punishment of Offenders Act 2012, which I will refer to as LASPO, made fundamental changes to eligibility for legal aid. Under LASPO, applicants must pass three basic tests. The case must be within the scope of the legal aid scheme; there is a financial means test to pass; and there is a merits test, looking at the applicant’s chance of success in the case and a cost-benefit analysis of providing legal aid funding. Matters that are included in the scope of legal aid are homelessness; allocations; accommodation for asylum seekers; repossession of a rented home, but only when the loss of the home is imminent and the landlord has sought an order for possession; lawful and unlawful eviction from the home; injunctions relating to harassment; antisocial behaviour cases in the county court; disrepair, but only when there is a serious risk of harm to the health or safety of the occupiers; and judicial review. Areas that are no longer eligible for legal aid under LASPO are rent and mortgage arrears that may ultimately result in possession proceedings; early stage disputes between landlords and tenants—

[Ellie Reeves (Lewisham West and Penge) (Lab)]

My hon. Friend mentioned early legal advice. Of course, one recommendation from the Bach commission is that early legal advice can help to save money in the long run. The Law Society estimates that the cost of early legal advice on housing benefit claims would be £1.7 million to £2 million each year, but the costs through avoidable evictions are often far greater for individuals, councils and the NHS. Will—

[Mrs Anne Main (in the Chair)]

Order. Would the hon. Lady sit down? There is plenty of opportunity to speak. These are not interventions when they are of such length. Please form a question quickly to the hon. Member for Brentford and Isleworth (Ruth Cadbury).

[Ellie Reeves]

Does my hon. Friend agree that reintroducing early legal advice would help to solve the housing crisis?

[Ruth Cadbury]

Absolutely. My hon. Friend anticipates what I will come on to in a minute.

Not only are early-stage disputes between landlords and tenants no longer eligible for legal aid, but housing benefit advice is no longer eligible. That is particularly worrying because of the many changes to the benefits system, to which I have referred. As I said, when people transfer to universal credit, there is no payment for up to five weeks. That is a lot of money and a lot of heartache, particularly for tenants in the private sector whose landlords are not prepared to wait until things are resolved. However, the situation is worrying even for housing association or council tenants. I try to reassure them by saying, “Don’t worry. The council will not evict you on this basis.” However, it is still stress and worry that people do not need, and many people go and borrow money, which they can ill afford to repay, from friends, relatives and payday lenders. It causes massive problems.

Since LASPO was introduced in 2012-13, there has been a 58% fall in legal help for housing cases in England and Wales; the number has gone from just over 85,000 per annum to just over 35,500 per annum. As we have mentioned, LASPO has caused a critical decline in the number of housing legal aid providers, from 646 in the year before LASPO to 427. The Law Society found in July 2016 that one third of legal aid areas have just one solicitor providing specialised housing advice through legal aid. Areas such as Surrey, Shropshire and Suffolk had no legal aid provider specialising in housing. That is shocking.

A review of LASPO in respect of legal aid for housing advice and aid is urgently needed, but I want to focus now on the area raised by my hon. Friend the Member for Lewisham West and Penge (Ellie Reeves)—early legal advice. Without early legal advice, a problem can escalate, which costs the tenant stress and possibly the loss of their home. That causes knock-on costs for the public purse, poor health, homelessness and debt. I have met several families in my surgery and in my work as an MP outside the surgery who did not seek early advice. They left their home when the landlord asked them to; they did not wait for the court order, let alone the bailiffs. As a result, they were deemed intentionally homeless, so the housing department was able to discharge its duty to house them. How many people know the ins and outs of housing law sufficiently to know what I know, which is, “Wait until the bailiffs arrive”? Most people want to do the right thing. They are scared by their landlords. They think that they can sofa-surf for a while and sort something out. Reality is not like that, particularly in the very high-cost areas of west London that I represent.

As I said, if people are deemed intentionally homeless, the housing department is able to discharge its duty to house them. If they have children, then under the Children Act 1989 social services, quite rightly, have to find them a home. That is yet more work and costs for already overstretched social workers, who are not housing specialists, and it means that social services are competing for the small amount of private sector accommodation from which the housing department is seeking temporary accommodation. And there are all those people who come to live and work in London, who are also looking for accommodation.

Under LASPO, legal advice is not available for disrepair until it affects the tenant’s health, or for possible eviction unless a possession notice has been granted. In November 2017, the Law Society called for legal aid to be reintroduced for early advice in respect of family and housing law, saying:

“Everyone knows that if you catch a problem early, you’re more likely to stop it getting worse.”

The Law Society research showed that, on average, one in four people who received early professional legal advice had resolved their problem within three to four months, but for those who did not get any legal advice, it was not until nine months after the issue first occurred that one in four had resolved their issue, and those getting no early advice were 20% less likely on average to have their problem resolved.

The Law Society, in making its report, was not angling for more work for its members—in fact, probably the opposite, as it recognises that legal problems, like so much in life, are easier and cheaper to deal with early on. The Law Society estimates that restoring housing benefit advice to the legal aid system could be done for about £2 million a year. That is based on the cost of pre-LASPO advice in relation to housing benefits. It also suggests that restoration of early advice on mortgage arrears, which is now outside the legal aid remit, could prevent escalation of arrears and further costs of possession proceedings and, by the way, reduce some of the additional costs arising from legal aid cuts.

I am really pleased that in April, the Labour party announced its new policy to restore legal advice in all housing cases. That came from one of the recommendations of the justice commission chaired by Lord Bach, which was established by my right hon. Friend the Member for Islington North (Jeremy Corbyn) when he became leader of the Labour party; it was one of the first things he did in that role. The Bach report estimates that restoring legal advice funded by legal aid could help up to 50,000 households a year to enforce their housing rights.

By responding to Labour’s announcement and starting to provide funding for early professional legal advice for housing matters, the Government would really be making a difference to many people in our constituencies. That would almost certainly mean a lower volume of cases going to court, as they could be resolved earlier. Wider benefits and savings would include avoiding health issues caused by significant disrepair; not having to pay housing benefit for high-cost temporary housing; fewer people becoming homeless; and fewer leaving rent arrears and mortgage debts unaddressed.

Everyone should have the right to a safe and decent home, so I ask the Government to take the opportunity presented by the review of LASPO announced last October to recommend returning to the legal aid scheme the ability to obtain legal advice for housing matters, and to have a fundamental review of legal aid as it applies to housing issues. I look hopefully at the answer that the Minister gave my hon. Friend the Member for Sheffield Central (Paul Blomfield) on 23 January this year on this very issue.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mrs Main. I am grateful for the opportunity to respond to a debate on such an important issue. I congratulate the hon. Member for Brentford and Isleworth (Ruth Cadbury) on securing it. She is highly committed to this issue as she was a shadow Housing Minister. I offer my congratulations to her on completing the London marathon at the end of April, raising money for two causes, including the housing charity Shelter, which does excellent work.

The hon. Lady and the hon. Member for Strangford (Jim Shannon) mentioned the importance of the work that third parties do to support people in society, such as the work of the Law Centres Network and the CAB. There are many pro bono organisations put forward by the legal profession and, as the hon. Member for Strangford pointed out, church groups. I, too, would like to add my support for the work that they do.

I want to emphasise the importance of the legal aid system. The Ministry of Justice spends £1.6 billion a year on legal aid, one fifth of the Ministry’s overall budget, which is not an insubstantial sum. It is right that we spend a significant amount of money on legal aid, but there are not unlimited resources available to the Government, so it is right that we spend the money on the people who need it most: those who are the most vulnerable, those who face the most significant issues in their lives and those who have no alternative to legal support. Those principles are fair. It is right to recognise that this debate takes place in that context.

The hon. Member for Brentford and Isleworth suggested there is not enough legal aid support for legal advice. I will identify and correct some apprehensions about legal aid and housing. As many hon. Members have identified, legal aid for housing assistance is available. Legal aid, including early legal help, is available to help those who face homelessness to access accommodation and assistance. It is available to defend individuals who are being evicted from their home or having it repossessed; to ensure that homes are safe for habitation; and to obtain injunctions preventing harassment from landlords and others.

Legal aid is available for judicial review if a local authority subsequently fails to take action or those affected wish to challenge the conduct of the local authority. For example, if the rehousing proposed is not suitable, legal aid would be available to bring a challenge. It is available if there has been a significant breach of convention rights or abuse by someone in a position of power. Legal aid is also available to bring a damages claim. As I have mentioned, the Government have protected legal aid for those facing the most challenging situations in their lives, whether that is the threat of homelessness or dangerous conditions that pose a risk to the life, health or safety of their families.

[Ellie Reeves]

I note what the Minister says about situations where legal aid is available, but does she not accept that, since the LASPO reforms, housing cases have fallen by 50%? That is a huge increase in the number of people not getting access to justice in housing cases. Does she agree that the review of LASPO should reverse that?

[Lucy Frazer]

As the hon. Lady has identified, there is a review into the changes that were made. The Act aimed to cut legal aid, so availability was reduced in many areas. However, the fundamental principle behind the changes in the Act were to ensure that those who most needed help and could not get it from any other sources retained the ability to get legal aid. As I have mentioned, that is being reviewed.

I have identified the areas where we provide legal aid in housing, but we need to look at how it is provided. As the hon. Member for Brentford and Isleworth identified, it is important that we have early legal help. Last year, we spent nearly £100 million on early legal advice across all categories, including housing. Advice for housing is available through face-to-face meetings or through telephone advice. The telephone service offers services beyond that which can be provided at local centres face to face. For example, the telephone service can offer interpretation in more than 170 languages, including British sign language via webcam, which operates over the weekend. Last year, there were more than 20,000 instances of advice provided by that system. It allows individuals to access advice quickly and easily.

Legal aid is also available for representation at hearings. People can access representations from individuals already engaged in their case and giving them legal help. In addition, the housing possession court duty scheme is a vital service that offers on-the-day advice and advocacy at court to anyone facing possession proceedings. Individuals in danger of eviction or having their home repossessed can get free legal advice and representation on the day of their hearing, regardless of their financial circumstances.

The hon. Members for Ashfield (Gloria De Piero), for Barnsley East (Stephanie Peacock) and for Dwyfor Meirionnydd (Liz Saville Roberts) talked about gaps in advice, which they called advice deserts. We in the Ministry of Justice are committed to ensuring that everyone has sufficient advice to help, wherever they live. I should make it clear that the Legal Aid Agency regularly monitors market capability to ensure that there is adequate provision around the country, and moves quickly to ensure that face-to-face advice is available to prevent gaps appearing. Of the 134 housing and debt procurement areas for legal aid across England and Wales, all but one currently have provision. The Legal Aid Agency has recently secured provision for the remaining one and services will commence there shortly.

On the procurement of legal aid services, the Legal Aid Agency has recently re-tendered for new civil contracts to start in autumn 2018. The procurement includes contracts for both face-to-face advice and telephone advice for housing matters. I am pleased to say that the Legal Aid Agency received tenders from more than 1,700 organisations wishing to deliver face-to-face civil legal aid work. Those organisations submitted over 4,300 individual bids. Successful applicants for face-to-face contracts were notified in January. The new contract encourages providers to be flexible as to where and how advice can be delivered, including making better use of technology. A good level of response was received, with an overall increase in the number of providers wishing to do the work. In areas where an access gap is identified, the Legal Aid Agency will take steps to secure provision. In addition, to reflect the nature of today’s society, we have developed a user-friendly digital tool that makes it clear to people when legal aid is available to them. If someone is unsure which organisations offer legal aid in a given area, they can use the “find a legal aid adviser” tool on gov.uk to find the 10 nearest organisations to them that have a contract to offer advice and assistance through legal aid in that category of law.

A number of hon. Members raised issues that went wider than legal aid for housing. The hon. Member for Brentford and Isleworth spoke about welfare claims. We work closely with the Department for Work and Pensions to ensure that it gets decisions right first time and they do not end up in a tribunal. We are making changes using technology to improve the social security tribunals. The hon. Member for Strangford rightly identified the consequences of family breakdown. At the Ministry of Justice we are looking at ways to avoid the impact on families of conflict resulting from breakdown.

The hon. Member for Ashfield made some broad points about the Government’s record on housing and I should like to clarify the position. The Government have done a significant amount to improve the housing stock and to help first-time buyers and people who want to leave home. We have built 1 million homes since 2010. House building is at its highest level since the crash. We have abolished stamp duty for 80% of first-time buyers and brought in landmark legislation—the Homelessness Reduction Act 2017—to improve the life of people who have no home and sleep rough on the streets. Fewer than 3,000 local authority homes were built under Labour from 1997 to 2010. Since 2010, nearly 11,000 homes have been built.

Many hon. Members mentioned the LASPO review. The reforms in question were made under LASPO, and I have said that they were founded on the principle of ensuring that legal aid will continue to be available for the highest-priority cases. It is important that legal aid should be focused on those least able to pay for representation. The changes were subject to a significant amount of scrutiny in during the passage of the legislation through the House of Commons. They were debated extensively and amended before they were approved by Parliament.

As the Scottish National party spokesman, hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), pointed out, we are in the process of a broader review of legal aid. Matters covered by the review will include housing advice changes and early legal advice. Given that there is an outstanding review, the debate is a valuable opportunity to listen to the many thoughtful points made by hon. Members. We are currently engaging with a wide range of stakeholders across the legal sector, individually and in consultative groups. The first round of consultative group meetings took place last month, and they were well received. We are keen to hear from as many interested parties as possible, to establish the impact of the changes.

As well as looking back over the record of LASPO and some previous decisions, it is crucial that we look forward to ensure that access to justice, to which legal aid makes a hugely valuable contribution, will be maintained and will meet the needs of a modern society. We are investing £1 billion to transform courts and tribunals and build on our world-renowned justice system, so that it will be more sensitive to victims, more modern—so that it works more efficiently and swiftly—and more accessible. As part of that we shall digitise our services to make them easier for the public to use. It is essential that we continue our work to ensure that legal aid is made available to the most vulnerable, as part of that wider approach to making the justice system fit for the 21st century.