Legal Aid Providers and Contract Specifications

Contact details for Hanne & Co. can be found at www.hanne.co.uk and we can be contacted on 020 7228 0017. My blog is not an official Hanne & Co. blog, but we are a great firm! I would also signpost you to an excellent list of Legal Aid providers compiled by my colleague William Flack, accessible through his blog: http://wflack.com/list-of-solicitors-organisations-who-can-help-with-housing-problems/

Furthermore, the Government maintains a very useful list of Legal Aid providers with details of their contract specifications – i.e. the types of Legal Aid work they are able to carry out under their licence. You will have seen from my recent posts that the Standard Civil Contract is a very important aspect of Legal Aid, and I explain the contractual nature of the beast in later posts as well. The Government list can be downloaded here: https://www.gov.uk/government/publications/directory-of-legal-aid-providers – at the time of writing it was last updated on 20th May 2019, so it should be fairly accurate.

A Cautionary Note to Legal Aid Practitioners under a Housing Contract: Possession Cases

For a matter to be within scope for Legal Aid, provision for it must be made under Schedule 1 of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (http://www.legislation.gov.uk/ukpga/2012/10/schedule/1). In respect of housing, and specifically in respect of the loss of home criteria, Paragraph 33(1) lays down as in scope:

Civil legal services provided to an individual in relation to—

(a)court orders for sale or possession of the individual’s home, or

(b)the eviction from the individual’s home of the individual or others.

Paragraph 33(2) lays down:

Civil legal services provided to an individual in relation to a bankruptcy order against the individual under Part 9 of the Insolvency Act 1986 where—

(a)the individual’s estate includes the individual’s home, and

(b)the petition for the bankruptcy order is or was presented by a person other than the individual,

including services provided in relation to a statutory demand under that Part of that Act.

It seems clear – if somebody faces the loss of their home due to eviction, or a repossession by a bank, or a court order for sale, or a bankruptcy order, these matters fall within scope for Legal Aid – and so they do. However, it is not necessarily true that a housing lawyer can provide Legal Aid services for these issues under their Legal Aid retainer. Although the issues are all about housing, and clients as well as housing lawyers new to Legal Aid will feel confident that they have the right contract for the job, that is not necessarily the case.

The Legal Aid Agency’s Category Definitions 2018 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738528/2018_Standard_Civil_Contract_Category_Definitions__August_2018_.pdf deals with the housing contract at paragraph 37. The bread and butter of our possession work – evictions – is of course included within the contract, and so are orders for possession of owned homes, although the biggest group in this category – mortgage repossessions – are specifically excluded. Court orders for possession of an individual’s home arising out of failure to make payment due under a mortgage fall under paragraph 27(b) of the Category Definitions, which describes a debt contract, not a housing contract. Also of interest is that any order for sale – not possession – also falls under the debt contract at paragraph 27(a) and not the housing contract, as do bankruptcy orders which threaten loss of home under paragraph 27(c). If you are a lawyer at a firm that has both a housing and a debt contract and you are personally qualified to practise both areas of law, you should ensure that such cases are opened under the debt contract, not the housing contract. If your firm does not have a debt contract, you must refer such matters on.

Domestic Abuse, Loss of Home, and the Standard Civil Contract

This post isn’t going to attempt to discuss all facets of this subject, but only one very specific issue. I hope to write further posts about some of the other facets that are legally engaging, but I shall leave that for another evening.

I have been running a case recently that has led me to investigate domestic abuse, loss of home, the law, and the Legal Aid Agency’s Standard Civil Contract. All Legal Aid solicitors operate under this contract, and the standard terms can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738513/2018_Standard_Civil_Contract_Standard_Terms__August_2018_.pdf

The contract governs standards, types of work, payment, supervision, and so on, and a solicitors’ firm in breach of these terms can have their licence to offer Legal Aid services revoked. It is very important that lawyers operate within the rules.

The case in question involves a secure joint tenancy and my client who is being rehoused away from that tenancy because of domestic abuse. The problem is that since the Localism Act 2011 councils have tended to offer flexible tenancies which don’t have the substantive security of tenure of older style tenancies. This is not a stand-alone case, and victims of domestic abuse can often find themselves losing out on security of tenure because they need to be rehoused.

The Secure Tenancies (Victims of Domestic Abuse) Act 2018 received Royal Assent on 10th May 2018. Section 1 amends the 1985 Housing Act by creating a duty to grant an old-style tenancy if the applicant needs a new tenancy after fleeing an old-style tenancy on account of domestic abuse. Unfortunately, Section 2 establishes that Section 1 will only come into force on such day as the Secretary of State may by regulations appoint. No such regulations have been laid down and perhaps we may blame this on the amount of parliamentary and Government time being taken up by Brexit.

There is another provision of law that may help in these circumstances. Under Section 53 of the Family Law Act 1996 it is possible under certain circumstances for the Family Court or the High Court to order that a tenancy be transferred from one name to another, or a joint tenancy to be vested in a sole name, as part of divorce or separation proceedings. The rules surrounding this are partly set out in Schedule VII of the Act and partly in an array of case law. So, our victim of domestic abuse may be able to argue forcefully that she be assigned the tenancy. There are complicating factors which I will not delve into in this post, but this is a powerful piece of statute, although it would not help the victim’s security of tenure should she need to be moved to another property. A judge may also be reluctant to rely on Section 53 if the victim is being rehoused anyway and if the result of such a ruling would be homelessness for the other party, which it almost certainly would in many cases (a single man – particularly one who has committed domestic abuse – is unlikely to be found to be in priority need for rehousing by the council).

When a person has a problem with their housing and their tenancy, such as the domestic abuse victim in the example above, they are likely to contact a housing lawyer. This makes sense, and a housing lawyer should be able to assist somebody with issues surrounding their tenancy. A housing lawyer may not currently be able to assist, however. When the relevant regulations are brought in to activate Section 1 of the Secure Tenancies (Victims of Domestic Abuse) Act 2018 then there will be no problem for a housing lawyer to help under the Standard Civil Contract, as the 2018 Act can simply be interpreted as a satellite piece of legislation to help lawyers deal with homelessness and rehousing – an area that is certainly within scope and certainly within specification for a housing law contract. The difficulty is that currently, the Section 53 alternative does not fall within a housing lawyer’s Legal Aid retainer.

It is important that both practitioners of Legal Aid and legally-aided clients understand the rules of the Standard Civil Contract because these form the basis of what a particular lawyer or firm can do under Legal Aid. When a client comes to a Legal Aid firm, not only must the case they present be within scope, not only must the client themselves be financially eligible, but the firm they approach must also have a contract with the Legal Aid Agency that permits them to deal with that particular area of law. In addition to the Standard Terms, there is the 2018 Standard Civil Contract Specification, which can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738514/2018_Standard_Civil_Specification__General_Provisions___August_2018_.pdf

Paragraph 2.29 states that:

All Categories of Work are exclusive under this Contract. You must have Schedule Authorisation in a Category to undertake work in that Category unless it is Miscellaneous Work.

In other words, a law firm will have contracts with the Legal Aid Agency to carry out work in certain fields of law, and one contract does not cover all types of law. Certain types of case are “miscellaneous”, but Section 53 of the Family Law Act 1996 is clearly defined as falling under a family contract. The categories are defined in the Legal Aid Agency’s Category Definitions 2018 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738528/2018_Standard_Civil_Contract_Category_Definitions__August_2018_.pdf), and, setting out the family law category, paragraph 34 includes within that category:

34. Legal Help and all proceedings in relation to matters arising out of a family relationship where the client has been, or is at risk of being, a victim domestic violence (as described by paragraph 12 of Part 1 of Schedule 1 of Part 1 to the Act), including matters under the following enactments:

… (m) section 53 of, and Schedule 7 to, the Family Law Act 1996; …

“The Act” referred to is the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 and is the legislation that sets out the scope of Legal Aid today. All matters that arise from Paragraph 12 of Part 1 of Schedule 1 should be classed as falling under a family law contract, and not a housing contract (unless the matter can also be described as a housing matter within the scope of a housing contract). Currently, should a client come to you with a case similar to that described above, and you are operating under a housing law contract, there are few options left to you than to refer the matter to one of your family law contract colleagues.

This is hardly an ideal state of affairs, and I can only hope that the regulations are brought in as quickly as possible. This will enable lawyers under housing contracts to get involved in this type of matter, and will mean that victims of domestic abuse who come to housing lawyers with concerns over their impending loss of security of tenure are not turned away at the door.

The Homelessness Reduction Act 2017 (and LHA Rates)

I recently attended an evening talk at Doughty Street Chambers (https://www.doughtystreet.co.uk/) on the Homelessness Reduction Act 2017. It was a very useful talk given by some very experienced barristers.

The Doughty Street team began by explaining that the purpose of the Homelessness Reduction Act was, in part at least, to save the Government money. It increased early-intervention duties for local authorities so that people threatened with homelessness would be assisted in order that they do not actually become homeless, and so not need emergency temporary accommodation from the council. Temporary accommodation is the most expensive type of accommodation which the government funds. The idea is that earlier intervention equals lower demand for temporary accommodation equals a saving in the budget. Before people are made homeless, councils are under new duties to assess them and provide them with a Personalised Housing Plan alongside prevention and relief duties for 56 days each. The Government has provided £20 million over three years for these additional duties, but the savings envisioned in respect of the need for temporary accommodation are not materialising and homelessness funding is now facing a £110 million shortfall in London, and this is expected to increase to a £420 million shortfall over the next 5 years. Nationally, the figures I have gathered online suggest shortfalls of £1 billion and £8 billion respectively.

One problem with homelessness alleviation and the homelessness budget – which is not aided by the 2017 Act – is the lack of housing stock and the consequences of this. The lack of housing stock has logistical as well as financial consequences. Where a duty to house is made out, local authorities must sometimes turn to private landlords to take homeless applicants off their hands, for a fee. The amount that local authorities pay private landlords in Housing Benefit is set at Local Housing Allowance (LHA) rates which are decided by the Valuation Office Agency. LHA rates were frozen in April 2015 and will not rise until at least March 2020. Currently, LHA rates in Wandsworth – the borough in which I work – are set at up to £320.74 per week for a two bedroom property depending on the area of the borough and the size of your household. This is £1,282.96 for four weeks. A full break down of rates in that particular borough can be found here: https://www.wandsworth.gov.uk/info/10112/local_housing_allowance/976/local_housing_allowance.

This rate is not enough to incentivise landlords who are typically reluctant to accept Housing Benefit tenants. Local authorities are therefore being forced to pay private landlords a sweetener of as much as £8,700 to take homelessness applicants off their hands. Apparently, London authorities spend about £14 million on these sweeteners every year.

The Homelessness Reduction Act 2017 is a very positive step in attempts to alleviate homelessness. However, the black hole of funding, the housing shortage, and the amount of work that councils face means that they are only managing to fire-fight and must expend some parts of their budget incentivising landlords rather than targeting that money on their new early intervention duties.

First post

This blog will be about my observations and thoughts on working in housing law as a trainee solicitor. My Training Contract will begin in September 2019 but I have already been working at the same firm, Hanne & Co. in Battersea, for nearly nine months at the time of writing.

I work closely with colleagues dealing with possession proceedings, homelessness applications and appeals, housing disrepair, and a significant portion of my time is spent on cases funded by the Legal Aid Agency and it is this Legal Aid work which will form most of the substance of this blog. My Legal Aid colleague William Flack keeps a blog of his own at http://wflack.com/ and he is a practitioner of many years’ experience. It is on his advice that I have created this blog

I aim for this blog to be of interest to fellow practitioners as well as others who are new to this field of work, and I would like it also to be of use to people who are not lawyers but have an interest – either personal or professional – in the topics I discuss.