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Is justice facing eviction

On the face of it, proposed reforms to the legal aid system have nothing to do with housing matters.

But the ramifications threaten to turn tenants into collateral damage in a government fight for modernisation. As the blindfolded lady is threatened with eviction, the Law Society asks ‘what price justice?’ Welcome to the complicated and contentious labyrinth of housing law.

Lawyers are contentious by the nature of the job, but they are not generally considered a militant breed; the outcome of the Carter Review of legal aid procurement, however, has provoked sections of the profession to take up arms in a campaign for justice. In a painful irony, the world of housing was never the intended – or at least the main target – but it has been caught in the crossfire.

At the heart of the rumbling sense of injustice is the reform of the criminal legal aid system. Lord Carter of Coles’ report proposed 62 recommendations for the future delivery of legal aid. Key proposals suggest paying lawyers a fixed-fee per case, rather than by the hour, along with the introduction of a market-based system using best-value tendering for contracts based on quality, capacity and price. In theory, these market-based reforms are about simplifying and modernising the process while maintaining better value for money – and keeping legal aid ‘free at the point of delivery’.

Legal aid and social exclusion minister Vera Baird said: “It is vital that the law is available equally to both the vulnerable and the powerful, to those with little money as well as the rich. However, all of us who believe in this principle understand that this strong system can only continue within a framework affordable to the taxpayer.” Critics of the reforms, however, argue that it might create better value for the taxpayer, but at the cost of legal provision for those who need it most. The fixed-fee will be the same whether a case takes two hours or twenty hours.

Alison Hannah, the director of charity Legal Action Group didn’t mince her words: “It is perverse that the planned approach provides an economic incentive for legal aid suppliers to act for relatively articulate and educated clients with easier cases, rather than those with additional needs or complex cases.”

David Harker, chief executive of Citizen’s Advice added: “The Citizen’s Advice service work with thousands of people each year, often many who are vulnerable and cannot afford legal representation. These are exactly the people legal aid is meant to support, but many cases cannot be solved in a few hours. The proposed system of rigid fixed fees could mean our staff would not be able to spend enough time with those clients who need most help to resolve their issues properly.”

According to the Law Society, the spending on civil legal aid – which includes housing – has already fallen in recent years from £564 million at the turn of the century to £490 million in 2004/05. Speaking at the launch of its campaign ‘What Price Justice?’ the Law Society’s chief executive Desmond Hudson said: “The most vulnerable in society are already struggling to find legal aid advice to help gain custody of children, fight eviction or prevent domestic abuse. Getting legal aid advice is a postcode lottery now, but these plans could turn it into a national lottery.”

The proposals could be made to work, the organisation believes, but only if the Government invests in stabilising legal aid provision before the reforms come into effect in April 2007. In a sense, it boils down to the fundamental and ancient right to a fair trial, but in the bean counter drive for cost efficiency, the Government’s proposed reforms stand accused of modernising a basic plank of justice into the history books. “When resolving disputes it’s very important to have ‘equality of arms’ between the parties. It is a question of the Human Rights Act Article 6 – the right to a fair trial,” explained Sara Chandler, chair of the Law Society’s Housing Law Committee. “Housing law has always been one of the most difficult. It is based partly in case law, so you are looking back at precedents over years. Some of it is contract law because the tenancy agreement is itself a contract. [Carter] is impacting disproportionately on public law cases – and housing is part of public law. There’s not been enough investigation; we are kind of like the ‘poor relation’ of the Carter Review with so much emphasis put on criminal law that civil and family law has not been, I feel, very well thought out.”

There is a veritable abundance of legislation to navigate in the world of housing. To name a few: the Rent Act 1977, Housing Act 1980 and also 1985, Housing & Planning Act 1986, Local Government Act 1989, Housing Act 1996, Anti-Social Behaviour Act 2003, and now the Housing Act 2004. That’s a lot to keep track of, and given the way they interact there is inevitable scope for misunderstanding and disagreement. “Because of the amount of legislation, it does create something of a statutory maze,” said Nick Billingham, partner and head of housing management and property litigation at Devonshire’s Solicitors, which works with RSLs and local authorities. “On top of that, we’ve got case law, decided by the Appeal Courts.”

For local authority and RSL staff, this statutory maze is complex enough, but it is surely a nightmare for the man on the street. Little wonder then, that disputes arise and with them the need for legal representation to smooth and advise the process. Indeed, the work of a lawyer is not only about disputes and litigation – but about avoiding it too. That means a consultation and advisory role: a resource that is as important for the landlord as it is for the tenant, courtesy of Law Centres and CAB. Indeed, a recent Law Commission consultation has been looking at methods of resolving disputes before they hit the expensive high drama of the courtroom.

“The bulk of our work is litigation in the sense of possession proceedings, from straightforward rent arrears and squatter proceedings, through to complex disputes,” Billingham added. “Antisocial behaviour is a huge part of our practice, repossession proceedings on the back of that, sub-letting, non-occupancy cases, we’ve got disputes involving disrepair, but 40 per cent of our work will be advice.”

Naturally, in such disputations, the opposing party will require independent representation. So, we return to Chandler’s ‘equality of arms’ and the right to a fair trial. Obviously, there is a tremendous disparity of both social and economic power between, say, a local authority or an RSL and a tenant. In that respect, it is easy to see why those active in the provision of legal aid are concerned about the impact of the Carter reforms. Take away a tenant’s access to legal representation and they stand disarmed. To add to the complexity, legislation from beyond housing can also spill over to affect the relationship between landlord and tenant. One such potential example is the new Age Discrimination Act. On the face of it, and for the most part, the law affects employer and employee – making it illegal to discriminate on the grounds of age. Yet there could be something of a grey area in respect of tenants – in their role as tenant representatives on RSL boards. They are not employees, which excludes them from the legislation, but as David Rumm, solicitor with Batchelors said: “If by dint of what they are doing they are office holders, then they will be covered.”

So, that may mean that another avenue has been added to the already bewildering maze, which is why the role of the lawyer can only become more involved – and more specialised. As Chandler added: “Housing law is a vital area of law because a roof over a person’s head is a basic human right.”

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