Legal Aid, Sentencing and Punishment of Offenders Bill

I rise to move Amendment 72A and to speak to Amendments 72B to 72D, 74C, 77A to 77H, 77K, 78A and 78B. That makes a total of 16 amendments, but they are interrelated so I hope that at this late hour it will not take too long to speak to them. As it stands, the Bill would limit housing and debt legal aid to homelessness, loss of home and very serious cases of disrepair. However, there are major problems with the definitions that would enable an individual to qualify for legal advice and support. This set of amendments forms a set of proposals that would address this difficulty. The Bill currently applies a very tight legalistic test in making legal aid available in cases involving court orders for sale or possession or for eviction proceedings. The nature of the test would make it very difficult to solve a problem at an early stage, which would be practical, fair and effective both for the individual and the legal system. These amendments would make it easier for an individual in financial difficulties that could lead to the loss of their home to get help at the pre-litigation stage in a case, for example, involving arrears. The cost of allowing the advice process to start earlier could be as low as around £3 million, but could solve problems earlier and save money later when litigation occurs. Specifically, Amendments 72B and 72C would enable an individual threatened with the loss of their home, due to the failure to pay either the rent or the mortgage, to get advice on any underlying benefit problems. The problem is that the proposals in the Bill are that all benefits work is to be removed from the scope of legal aid, except in cases that go to judicial review. At present, legal aid helps to fund support to defend possession proceedings as well as to resolve underlying benefit issues. Although in theory the Government have said that the loss of the home will continue to be prioritised for legal aid funding, the Bill will in fact prevent advisers from resolving benefits problems that lead to eviction proceedings. This is despite the fact that early intervention to resolve benefits issues often prevents these situations from escalating into possession proceedings. The danger is that the exclusion of benefits work from legal aid will tie the hands of advisers who are trying to prevent homelessness and will lead to many more unresolved cases filling the county courts. The courts will have more adjourned hearings and will ultimately have to make more possession orders because there is no one to resolve the benefits issue. This could result in higher costs to the taxpayer as a consequence. Amendment 74C enables people to obtain advice where their right to occupy their home has been terminated for reasons entirely beyond their control and for which they bear no responsibility. The Bill as currently worded removes the entitlement to legal aid-funded advice from people who are regarded as ““trespassers in law””, even if they were perfectly lawful occupiers when they first moved into the premises and they may indeed have been living there lawfully for many years. The policy intention seems to be to exclude squatters from legally aided advice. However, a consequence of the wording is to exclude unfairly others who unknowingly may be counted as trespassers and who may need legal advice. The term ““trespasser”” is not synonymous with ““squatter””, which denotes those who enter premises that they have no lawful right to occupy. A trespasser is someone who currently has no right in law to occupy their accommodation. In other words, a squatter is and has been a trespasser from day one of their occupation, but other people may have become trespassers, often without knowing it, when circumstances change. This change of status occurs in common situations such as the following: a person who takes a tenancy when the landlord is actually a tenant too and cannot sub-let—the sub-tenant is a lawful occupier only until the head landlord terminates the landlord’s tenancy, making the sub-tenant a trespasser; a person who takes a tenancy from a landlord when the landlord has a mortgage on the property on which he then defaults, leading to the lender securing a possession order—the occupier becomes a trespasser through no fault of their own; or where there is a joint tenancy and the relationship breaks down, one partner terminates the entire tenancy and the other partner is left, often after many years of occupation, as a trespasser in their own home. In cases such as these—and there are many more similar examples—there will be a need for good legal advice on all the options for many people on very low incomes. Amendments 77A to 77H, 77K, 78A and 78B relate to the rights of tenants and the powers of landlords. A difficulty with the Bill as it stands is that it decreases the powers of vulnerable tenants. For example, essential repairs and maintenance may not be done by a landlord but it may be impossible for a vulnerable tenant to do anything about it unless legal aid is available for disrepair and harassment damages claims. Amendment 77B extends the range of disrepair cases within the scope of lega1 aid by providing that legal aid should be available in cases where there is a risk of harm to the health or safety of the individual, not only where the risk is ““serious””. Trivial and unmeritorious cases claims would still be excluded by the operation of the legal aid merits test. Amendments 77D, 77H and 77K expand the class of persons whose health or safety is at risk to include anyone who resides in the property as a household member, even if he or she is not related to the tenant. Amendments 77A, 77C, 77E and 77F would allow funding to continue subject to means and merits to enable a tenant to claim damages where the landlord has carried out repairs. Amendments 78A and 78B would ensure that legal aid continues to be available for people needing to pursue a damages claim. In that case, most legal remedies used against difficult landlords include a claim for damages even where the tenant is seeking an injunction. That is necessary because, in contract law, damages are the primary civil remedy and an injunction will be granted only where damages could not be an adequate form of compensation. The Bill will remove damages claims from the scope of legal aid but leave injunctions within scope, although in successful damages claims legal aid costs will be recompensed in the award. In future, the Government intend damages to be funded by conditional fee agreements, which will require a client to find a lawyer willing to act for them on that basis. It is unlikely that that will be feasible in all but the most exceptional cases. In practice, the decoupling of damages from injunctions has the effect of offering only a part remedy to those needing to rely on legal aid. The law entitling tenants to claim for damages will remain on the statute books, but the low-income client dependent on legal aid will have no way to access that form of redress. In the case of illegal eviction, the Government have been persuaded that both damages and injunctions should remain eligible for legal aid. In Committee in the House of Commons, the Government put forward amendments to that effect. However, in cases of harassment and disrepair, damagesclaims are still currently to be excluded from legal aid funding. The cost of the amendments could be low. The Law Society has estimated that 60 per cent of the Government’s estimated savings in social welfare will not be made because of knock-on costs. I hope that some further work can be done before Report to ensure that the impact of the Bill can be minimised. I have one final point. The Supreme Court, citing the European Court of Human Rights, has recently upheld the need for the legal system to put in place appropriate safeguards where something as serious as eviction is concerned. It stated: "““The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal … notwithstanding that, under domestic law, his right of occupation has come to an end””." That is exactly the position of occupiers in the examples I have mentioned. The legal system cannot provide appropriate safeguards if such individuals cannot receive legal advice. The amendments would make legal aid available to ensure that low-income tenants can receive advice on their occupancy rights and ensure that people are not unfairly denied advice where they have major tenancy problems or where their home is about to be taken away from them. I hope that my noble friend will see the amendments as intended to help the administration of justice and make it more effective, rather than to hinder it. I beg to move.