Housing and Access to Legal Aid

Stuart C McDonald Excerpts

Wednesday 16th May 2018 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair, Mrs Main. I congratulate the hon. Member for Brentford and Isleworth (Ruth Cadbury) on securing this debate. It is one in a series of debates we have had in Westminster Hall on access to justice and legal aid more generally. That is essential, as we keep pressure on the Government during their internal review of the operation of LASPO.

From the outset, the hon. Lady identified the clear importance of early advice and the benefits that can bring in avoiding the escalation of difficulties and challenges into outright crises, and also in terms of cost. She put the debate in the appropriate context of a crazy housing market, austerity and cuts, challenges posed by universal credit and the complexity of housing law. All of that means that good and early advice is absolutely essential, but unfortunately it is becoming increasingly difficult to access. I join the hon. Member for Strangford (Jim Shannon) in paying tribute to those who are doing immense charitable work to support homeless people who have fallen foul of the challenges identified. They are overworked and under-appreciated. As he recognised, the key is to deliver advice that can prevent homelessness in the first place.

In my view and the view of my party, LASPO was a disastrous piece of legislation based on the utterly ill-conceived idea that taking whole swathes of civil law outside the scope of legal aid would be key to cutting costs, but would have no impact on access to justice. From the Justice Committee to the National Audit Office, from the Public Accounts Committee to the Lord Chief Justice, from the legal profession to third sector organisations, nobody has a good word to say about the changes introduced by that Act. The Justice Committee found that LASPO had unambiguously failed in three of its four stated goals: targeting legal aid towards those who need it most; delivering better overall value for money; and discouraging unnecessary and adversarial litigation. In relation to the fourth target, the Committee stated that,

“while it had made significant savings in the cost of the scheme, the Ministry had harmed access to justice for some litigants”.

Housing is an area of law that highlights many of the Committee’s points. Although a handful of housing law elements remain in the scope of legal aid, the absence of funding for early legal advice illustrates everything that is wrong about LASPO. Allowing legal aid for those who are about to lose their house but not those who are in rent arrears or struggling with housing benefit, is frankly absurd. It does not target legal aid at those who need it most. It provides legal aid to exactly the same people, but only after the crisis has become full-blown and perhaps impossible to resolve, instead of in its early stages when resolution would have been much easier. Nor does it deliver better value for money, because to fund someone defending eviction proceedings in court is clearly significantly more expensive than giving a small amount of advice earlier in the process. Self-evidently, it does not help to discourage adversarial litigation, except in the sense that some tenants will simply not manage to challenge rogue landlords, which I will come back to later. The Justice Committee pretty much says that in express terms, stating:

“The Ministry’s efforts to target legal aid at those who most need it have suffered from the weakness that they have often been aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive.”

As regards cost savings, it would be interesting to see a detailed analysis of the impact of removing many elements of housing law from the scope of legal aid. We should include in that not only the extent to which costs are moved from the provision of early legal advice to defending evictions in court and other such crisis procedures, but the financial impact on other services such as those relating to homelessness, housing, social work and health.

Instead of achieving the goals set for it, LASPO has left advice deserts, as was highlighted in several interventions. One third of legal aid areas have been left with just one specialist housing solicitor to provide legally aided advice, and some areas have none at all. The overall number of providers is down by a third, and it is actually a surprise that it has not fallen further, given the 58% fall in the number of legal help matters started for housing since LASPO was introduced. In 2016-17, there were almost 50,000 fewer cases than before the Act came into force, and that is a year in which exceptional case funding for housing and land law reached a record high of seven successful applications out of 48.

We need to ask who benefits from the system. In this area of law, it can only be those rogue landlords who breach tenants’ rights and who will increasingly be left unchallenged. LASPO can only have encouraged a culture where a lack of access to easy legal redress leads to more problems with rogue landlords across England and Wales. According to the Law Society, advice on housing benefits, rent arrears and other housing issues could be restored for as little as £2 million. It is an absolute no-brainer. The Government do not need to wait for any review to get on with that.

None of that is to deny the pressures that the Government face in terms of spending and ensuring that the legal aid budget is sustainable. However, my party does not believe that taking vast swathes of important legal advice outwith the scope of legal aid is the answer; in fact it can be utterly counter-productive, as this debate has shown.

That is why, in government in Scotland, we have continued to fund a legal aid system that is comprehensive in scope, including housing law, and generous in its eligibility criteria. The Scottish Government are considering the recommendations of the independent report that they commissioned to ensure that the system is made sustainable for the future, not through crazy cuts to the scope of legal aid, but through innovation, enhancing fairness and flexibility.

LASPO should be scrapped by the UK Government and they should go back to the drawing board. That is almost certainly what any independent report would tell them. If the Government’s internal review merely seeks to tinker around the edges, it will be seen and called out as the whitewash that that would undoubtedly represent. As I have said, there is no need to wait. The case for comprehensive legal aid for housing issues is overwhelming.