On the Edge of Homelessness with No Legal Aid
Jon Robins spends a day at a court in east London where a number of tenants about to be evicted – who should be provided with legal aid – are relying on a duty lawyer.
East London’s Stratford Hearing Centre is a disorientating and distressing experience for tenants who arrive at court fearful of losing their homes.
I recently spent a day there as part of the ‘Austerity Justice’ project, shadowing duty advisor Simon Mullings. There were 12 rent possession cases on a housing list that, on a busy day, can stretch to as many as 20 people – with each person having less than five minutes before the court.
Tenants don’t know what to expect and they certainly don’t expect to see a lawyer offering help. “Half of them think you’re the judge,” Mullings told me between clients. “I have people ask me if they are going to go to prison today. The more people there are, the less time I have to explain what’s going on and the more confusing it is for clients. Utterly unavoidable, but that’s the way it is.”
The duty lawyer’s job is to try to make sense of whatever paperwork a tenant or homeowner might have with them and advise on the legal process that awaits. Typically, they will try and secure an adjournment to give them breathing space and another, possibly final, opportunity to repay any arrears at a manageable rate.
“Everything that could go wrong is going wrong. We duty advisers are basically like an emergency A&E service to patch things up, but the wounds get deeper and more difficult to heal”Simon Mullings
Legal aid was removed for housing cases under the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) cuts, except where there is a risk of homelessness. I recently wrote about the legal advice ‘desertification’ of the country post-LASPO. There has been a dramatic contraction of the sector to the extent that almost a third of legal aid areas in England and Wales now have one or no local legal aid housing advice providers (including, for example, the entire county of Suffolk, which doesn’t have a single housing lawyer).
It was revealed in Parliament last month, in response to a parliamentary question, that, despite the fact that LASPO preserves public funding for homelessness cases, applications for legal aid in such cases had collapsed by a third (34%) since the cuts. This has happened in the midst of a housing crisis, with the number of rough sleepers in England soaring by 165% since 2010.
“Severe cuts to legal provision under this Government have left people without help and representation and, even cases that fall under the scope of legal aid, are slipping through the cracks of a broken system,” commented Shadow Justice Minister Gloria De Piero, who asked the question.
The court duty scheme is there for those who have “slipped through the cracks”. Many of its clients face immediate homelessness. “I just want to stop the eviction,” a 30-year-old Spanish man tells Mullings in the small conference room next door to the court. “I don’t have anywhere else to go.”
Two of the dozen people I see are former prisoners who fell into arrears whilst serving sentences and their problems have been exacerbated by the roll-out of the new Universal Credit benefit. The judge is sympathetic. “I have seen the situation before,” he says to one. “It’s one of the consequences of prison people don’t understand. He deserves the benefit of the doubt.”
The Spanish man isn’t so lucky. The judge points out that he is more than £9,660 in arrears. “£9,815.73 including this week’s rent’, his housing officer corrects. She has his rent book which reveals that only three payments have been paid. Mullings tells the judge that a friend has promised to pay half of his client’s arrears, however the friend is abroad. “My feeling is that your client is using the housing association as a credit agency,” the judge says.
The man is told he will be evicted tomorrow at 9.40 am sharp. “If we are not here, tenants are very vulnerable to inappropriate orders being made,” Mullings says later. “That’s no criticism of judges. If I’m not here then the judge is presented with an experienced housing officer who has all the paperwork and a tenant who’s often a scared witness. Housing officers can steamroller judges into making an order that otherwise they wouldn’t.”
The Ministry of Justice (MoJ) is currently reviewing its duty scheme after a successful challenge by the Law Centres Network last June, which effectively derailed plans to foist a price competition tender upon the sector that would have further driven down fees.
The court noted that, on the MoJ’s own account, any savings were likely to have been “negligible” as the cost of running the scheme was just £3.6m or “only 0.2%” of the entire legal aid budget. In a damning judgment, Mrs Justice Andrews criticised the ministry for its “facile assumption” to treat duty schemes in isolation and said that it was “beyond argument” that the schemes’ users “disproportionately” had protected characteristics under the Equality Act.
A new threat has now surfaced with Government plans for a specialist housing court largely driven by the concerns of private landlords, eager to speed up the eviction process. In its response to a Government consultation earlier in the year, the homelessness charity Shelter said that it was vital that the Government increased the availability of legal aid – especially for early advice to prevent small problems from becoming “full-blown crises”. It also recommended that the Government reinstates public funding for benefit and disrepair issues to “minimise the strain on the courts and ensure that people can effectively enforce their rights”.
“The more people there are, the less time I have to explain what’s going on and the more confusing it is for clients. Utterly unavoidable, but that’s the way it is”Simon Mullings
Housing lawyers have recently complained of what they have called the Legal Aid Agency’s ‘culture of refusal’ in the wake of the Terryann Samuels case. Last month, the Supreme Court ruled against a decision by Birmingham City Council that a single mother-of-four was ‘intentionally homeless’ and found that she should not have had to use her other benefits to make up the shortfall in housing benefits. The court recorded “the very substantial delay” in bringing the case “caused by funding problems related to the refusal of legal aid”.
The Legal Aid Agency (LAA) initially refused funding for the appeal and her lawyers had to threaten judicial review three times. “This important case would never have reached the Supreme Court if the LAA had had its way,” said her solicitor, Mike McIlvaney. “Decisions such as these are churned out across the country on a daily basis, finding individuals to be intentionally homeless in circumstances where they can’t meet the rent.”
The duty scheme theoretically provides a safety net for those about to lose their homes.
Despite the fact that LASPO preserves public funding for homelessness cases, applications for legal aid in such cases had collapsed by a third (34%) since the cuts.
Simon Mullings, a senior case worker at Edwards Duthie Shamash Solicitors, has been covering schemes at various courts in east London for 15 years and currently works at Edmonton and Romford as well as Stratford. Before LASPO, he reckons the work was “manic” and now more so.
“Some tenants would have had advice already and maybe their own representatives. That would knock, say, three or four cases off the list,” he says. “The cases are much more urgent now, the arrears higher, the problems more intractable and the consequences much worse.”
The idea of the ‘perfect storm’ is a cliché. “But that’s really the only way to describe it. Everything that could go wrong is going wrong,” Mullings says. “We duty advisers are basically like an emergency A&E service to patch things up, but the wounds get deeper and more difficult to heal.” That said, Mullings adds: “Some of the best work we do is on duty. We’re potentially saving homes, 10 to 15 times a day.”