Andrew Brookes, Partner
Journal of Housing Law, July 2007
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This edition of the Journal contains a series of articles about the impact of the Human Rights Act on housing. A number of complex cases where arguments about the application of the Act in relation to housing have been made are referred to. But given the Government’s proposals for reform of civil legal aid it must be questioned whether such cases might be brought in the future. It seems likely that the proposals will lead to the destruction of an already fragile network of housing advice provision, and potential breaches of Art.6 of the European Convention on Human Rights. How has this sorry state of affairs come about?
Originally briefed to concentrate on the procurement of criminal legal aid, Lord Carter in July 2006 took many civil practitioners by surprise in also proposing radical reforms to civil legal aid. The background to Lord Carter’s report1 was a steep rise in expenditure on Crown Court criminal defence work and public law children cases. It is important to note that there has been no rise in expenditure on civil legal aid for social welfare law including housing for a number of years. Practitioners were optimistic that savings in the criminal legal aid budget might release some much needed funding for civil legal aid.
It came as a shock to practitioners therefore that Lord Carter proposed a root and branch change in the way civil legal aid is funded with a view to cutting expenditure. The mechanism is to introduce a transitional system of fixed and graduated fees as a way of preparing for full competitive tendering. The eventual outcome is designed to be a smaller number of suppliers tendering for work through best value contracting.
The timetable is break-neck. All practitioners providing civil legal aid services, both private practice solicitors and the not-for-profit sector, were forced (and I use the word forced advisedly) to sign new contracts with the Legal Services Commission in March 2007. This will allow the transitional system of fixed and graduated fees to be introduced in stages from October 2007 with the aim to move to competitive tendering of civil work in May 2009.
Concepts of best value contracting and competitive tendering will be familiar to RSLs and local authorities. On the face of it then it might seem that legal aid procurement is simply catching up with everybody else. However, the reforms have been met with dismay by legal aid practitioners and a storm of criticism from organisations as diverse as the Advice Services Alliance, the Law Society, Law Centres Federation, Access to Justice Alliance, the Civil Justice Council’s Access to Justice Committee and, perhaps most significantly of all, the Parliamentary Constitutional Affairs Committee.2
With the complexity of the reforms and government spin, it can be difficult for those not directly involved in the provision of legal aid housing advice to understand the real impact of the reforms. It seems certain that this will be to reduce provision of civil legal aid services, reduce the quality of legal aid services and reduce expenditure on civil legal aid.
It is important to reiterate that there has been no real increase in expenditure on civil legal aid for social welfare law in recent years. There has, though, been a dramatic reduction in the number of suppliers. The evidence produced to the Constitutional Affairs Committee by the Legal Services Commission (LSC) themselves was that the number of specialist suppliers of housing advice had reduced by 30 per cent from 840 in 1999/2000 to 587 in 2005/2006. This illustrates the first fallacy of the reforms. Civil Legal Aid suppliers are already fragile and economically vulnerable. Further disruption and the reduction in funding are likely to lead to a collapse in supply.
The Constitutional Affairs Committee was rightly concerned about the impact to the supplier base of the current proposals. The Otterburn report3 looked at the comparable situation for criminal defence practitioners and noted the likely decline in the supplier base. The Committee made it clear that there is no proper market for social welfare law. This is obvious to all practitioners in the field. There is no competition for work or clients, indeed sadly many potential clients are turned away. How can tendering work in the absence of a market? All the signs from the LSC are that their idea of tendering is to use (and abuse) their monopoly position to drive down prices for legal aid work.
The clumsy imposition of fixed fees will benefit bulk suppliers doing simple cases to a low standard. The Civil Justice Council’s Access to Justice Committee considered the changes to be potentially discriminatory because suppliers would no longer want, for example, to deal with clients with mental health problems.4 There are no real incentives to quality in such a system.
As far as quality of work is concerned, the Constitutional Affairs Committee concluded that the result of the reforms would be a dumbing down. It is with some pride as a housing law practitioner that I note the stream of cases relating to housing matters coming through the Court of Appeal over the last 20 years or so. Quality legal work is not just an end in itself. I believe the checks and balances put in place by case law have led to a raising of standards in decision-making, planning and management of social housing. I fear that over the next 20 years the stream of cases will be much less, and accordingly this will have a knock on effect in housing decision-making.
The introduction of new contracts for suppliers of civil legal aid in March 2007 saw a huge groundswell of protest from suppliers. It has resulted in several judicial review challenges to the legality of the contract. At the time of writing,5 two of these were ongoing, one from the Law Society, and one from the Black Solicitors’ Network and Society of Asian Lawyers who rightly fear that the reforms will disproportionately hit BME led firms and organisations. None of this seems to be deflecting the Government and the LSC, who seem not to care whether civil legal aid is lost as part of the welfare state.
But why should RSL and local government housing professionals care? Won’t it mean that those pesky solicitors and advice centres advising tenants and homeless applicants go away? Isn’t that great? It’s not great. On a practical level it means that the burden of dealing with difficult tenants with problems like housing benefit entitlement will fall solely on RSLs and local government. The housing advice and tenancy support services RSLs and local government provide will face increasing demands on their services. There will be no new money from central government and RSLs and local government will be expected to pick up the tab.
But what about those annoying housing disrepair claims? Won’t they go? Wrong again. The only possible option, for many private sector housing solicitors at least, is to concentrate on disrepair claims, particularly where conditional fee agreements are available.
With no independent advice sector to advise service users about problems like housing benefit entitlement, or their homelessness application, problems will not be sorted out. The role which good advice can play in reducing social exclusion will diminish and social exclusion will increase.
But most of all, the reforms are an outrage to all those who believe in the rule of law. Legal Aid is an essential part of the welfare state. As with NHS dentistry, the Government seems unconcerned about the destruction of a corner of the welfare state. They plan to cover their tracks by spinning nonsense about the number of ‘‘acts of assistance’’ increasing. Look at the figures they say, the number of people assisted is increasing.6 But a telephone call to a helpline is just the beginning of advice. Having made contact, most people with a housing problem then need follow up and case work from a skilled adviser.
The Constitutional Affairs Select Committee in their report state that ‘‘providing effective access to justice is a basic tenet of the rule of law and a core characteristic of the welfare state’’. They conclude by saying that ‘‘We fear that if the reforms go ahead there is a serious risk to access to justice amongst the most vulnerable in society’’. I endorse these statements wholeheartedly and I can only hope against hope that access to proper advice for tenants and homeless applicants will be maintained and expanded rather than reduced.
1. Lord Carter's Review of Legal Aid Procurement, Legal Aid: A market-based approach to reform.
2. House of Commons Constitutional Affairs, Implementation of the Carter Review of Legal Aid (May 1, 2007).
3. Otterburn Legal Consulting, The impact of the supplier base of reduction in criminal fees from April 2007 (November 2006).
4. Civil Justice Council, Access to Justice Committee, Response to DCA/LSC Consultation Paper "Legal Aid: A Sustainable Future" (Autumn 2006).
5. Early May 2007.
6. LSC, Annual Report 2005-06.
For further information email Andrew Brookes or call 020 7940 4000.
