Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this large group includes a number of government amendments, which I presume are acceptable in their being mainly technical. I am extremely pleased to be sandwiched between my noble friend Lord Shipley and the noble Lord, Lord Beecham, as far as this debate is concerned. It is a great tribute to that great city of Newcastle that two of its most pre-eminent city leaders should now be giving such good service in this House and is a reflection of the quality of our civic leadership. As is obvious, this group of amendments has provided a very useful opportunity to examine our proposals as they affect housing. I do not underestimate the importance of housing as an issue. Like the noble Lord, Lord Phillips, I am old enough to remember Rachmanism and when and how it entered our language. I can still remember the shock that the initial showing of ““Cathy Come Home”” had on British society in the late 1960s. There is no doubt that housing matters, as this debate has reflected. As I said earlier to the noble Lord, Lord Howarth, a number of the points that were made either looked at worst-case scenarios or avoided exactly what the Government are providing for in the Bill. For example, when all these measures have gone through, we will still be spending some £35 million on housing-related legal aid. During the passage of the Bill and in light of respondents’ views in consultation, we decided that legal aid should be available for cases of unlawful eviction. We amended the Bill in Commons Committee to ensure that legal aid continues to be available in cases of unlawful eviction for lawful occupiers without a tenancy agreement. Therefore, those who are unlawfully evicted can get legal aid, not only for the case of the eviction but for claims for damages and damage to their goods. We are also retaining legal aid for housing disrepair where it is alleged that the disrepair poses a serious risk to health or life. This, too, will give some protection to tenants. Legal aid will also remain where a tenant is threatened with eviction for early advice on the merits of their case. The merits test, which applies to all legal aid cases, will help prevent public funds being wasted on hopeless cases brought by tenants—a point made by the noble Lord, Lord Best. So we are listening. I shall not repeat the mantra, but we are concentrating limited funds on what we think are the most important cases. At this hour, I shall go through the amendments to enable noble Lords to see where we are coming from on the issues raised by them. Amendment 81, as the noble Lord, Lord Beecham, acknowledged, appears to bring into scope housing law areas that are not covered in Schedule 1 and which we intend no longer to fund. We consider that many housing cases are primarily about money or property, and that these issues are not of importance when compared with such fundamental issues as homelessness or the immediate safety of individuals. As I have already made clear, we intend to retain housing matters in scope only where the individual’s home is at immediate risk. Accordingly, legal aid will be available in relation to court orders for the possession or sale of an individual’s home and eviction from the home. We are also retaining legal aid for housing disrepair cases where there is a serious risk of harm to the health or safety of the individual or their family, and legal services are provided to ensure that the landlord remedies the disrepair. Legal aid will also be retained for those who are homeless or threatened with homelessness and are seeking homelessness assistance from the local authority. Amendment 72A is aimed at making legal aid available where a tenant of a private registered provider of social housing, registered social landlord, housing action trust or local housing authority is facing a demotion of their secure or assured tenancy as a result of anti-social behaviour or use of the premises for unlawful purposes. If an individual’s tenancy is demoted, it is replaced with a less secure form of tenancy. Demotion orders are designed to send clear warnings to tenants who are found to have behaved anti-socially or used their home for unlawful purposes. A court can grant a demotion order only where it is satisfied that the alleged behaviour has occurred and that it is reasonable to make the order. Demotion orders are sought where there is anti-social behaviour but the landlords want to continue working with the tenants to improve their behaviour rather than evicting them outright. Accordingly, the individual is not at immediate risk of losing their home— as with, for example, an application for a possession order—and the Government therefore consider that the provision of legal aid is not justified in these circumstances. We acknowledge that where a court demotes the tenancy of an individual, it is easier for the landlord subsequently to seek their eviction. However, the granting of the demotion order does not necessarily mean that possession proceedings will be brought, and the tenancy will revert to secure or assured status after 12 months, provided that the landlord has not issued a notice seeking possession during the demotion period—for example, because of further anti-social behaviour. However, where that is not the case and in consequence a possession order is sought by a landlord, legal aid will be available at that point. Where a local housing authority or housing action trust decides to seek possession, the demoted tenant has the statutory right to seek an internal review of that decision. Legal help will be available for that under paragraph 28(1)(a) of Part 1 of Schedule 1. Legal aid will also be available in possession proceedings against a demoted tenant. Where the landlord is a public authority and the tenant raises proportionality under Article 8 of the ECHR as a defence to the possession proceedings, case law makes clear that the court must consider proportionality. In addition, where a social landlord obtains a demotion order and subsequently seeks possession of the property, legal aid will be available for the tenant in relation to any judicial review of the landlord’s decision to bring possession proceedings. Amendments 72B and 72C seek to make legally aided advice available in relation to welfare benefit entitlement where the individual is at immediate risk of losing their home and the benefits in question relate to housing costs—for example, housing benefit or the support for mortgage interest component of income support or pension credit. Legal aid will continue to be available where the home is at immediate risk through the repossession or sale of the home, or eviction. However, legal aid will not be retained for advice on welfare benefits matters. While we recognise that many people rely on benefits, these cases are primarily about financial entitlement and we generally consider their importance to be lower than cases concerning, for example, the liberty or safety of a person. For those who need assistance on a welfare benefits matters, factual advice is available from, for example, Jobcentre Plus, the benefits inquiry line and the tribunal itself. Accordingly, where possession action results from mortgage or rent arrears caused by a welfare benefits issue, we do not believe that legal aid should be provided in relation to the welfare benefits matter. I have already explained the Government’s reasoning for this. We consider that the tribunal for resolving disputes is generally accessible without the need for legal assistance. Where the benefits dispute is ongoing at the point where possession action is taken, legal aid will be available in relation to the possession action, and it can be used to argue for an adjournment of possession proceedings—for example, if it appears that the client may be able to make the necessary payments once their benefits dispute has been resolved. The Government understand that in cases where private landlords bring possession proceedings against their tenants, they will generally give the tenants reasonable notice that they are being asked to leave. Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including, if possible, coming to an agreement about delaying the possession matter until the benefit matter is resolved. Amendment 72D relates to the loss-of-home matters at paragraph 28 of Schedule 1. It appears that the intention, by lifting certain exclusions in Part 2 of Schedule 1, is to make legal aid available for a wide range of potential claims in tort and for welfare benefit matters within the context of eviction and possession. The Government amended paragraph 28 of Part 1 of Schedule 1 at Commons Committee stage to lift certain exclusions in Part 2 of the schedule in order to give effect to the original policy intention that legal aid should continue to be available for counterclaims to possession proceedings. It was important to do so as such counterclaims have the potential to keep clients from becoming homeless. We also lifted those exclusions in relation to unlawful eviction, in order to ensure that our policy that legal aid should continue to be available for such matters was given effect. The provisions that we introduced, now at paragraph 28(6)(a) and (b), lift the exclusions for trespass to person, to property and to land, and breach of a statutory duty in respect of counterclaims to possession proceedings and unlawful eviction proceedings. We believe that the provisions in paragraph 28 already sufficiently lift relevant exclusions in Part 2 of Schedule 1 as are necessary for the purpose of paragraph 28. Amendment 72D would go much further and is, we believe, intended potentially to allow legal aid funding for any tort claim that may arise in the context of a loss of home. Indeed, it might even in some circumstances make legal aid funding available to a landlord to bring a damages claim against a tenant within the context of eviction. In relation to tort claims more broadly, they are being more generally excluded from the scope of legal aid. The Government take the view that these cases are essentially claims for money or damages, which are a lower priority for funding than cases that involve more fundamental issues. Conditional fee agreements may provide a viable alternative means of funding such claims. We are retaining legal aid for the most serious damages claims against public authorities where the issue is an abuse of position or power or a significant breach of human rights, or for any case concerning alleged abuse of a child or vulnerable adult, or alleged sexual offence. We are also retaining funding for claims under the Equality Act 2010. On welfare benefits, with the exceptions of judicial reviews and claims related to the contravention of the Equality Act 2010, we have decided to remove welfare benefits matters from scope, for the reasons that I gave the House earlier. Amendment 74C is aimed at ensuring that the provisions of sub-paragraph 28(10) of Schedule 1, which relate to trespassers facing eviction, exclude from legal aid only those who are in occupation as a trespasser and who began their occupation as such. Legal aid will generally be available for possession and eviction matters under paragraph 28 of Part 1 of Schedule 1. However, the Government do not believe that it is justifiable to use taxpayers’ money to provide legal aid funding in circumstances where an individual has unarguably both entered and remained on a property or site as a trespasser and is facing eviction. Such cases are intended to be excluded by paragraph 28(10) of Part 1 of Schedule 1. The Government agree with the objectives behind this amendment and the concern motivated by it, namely that paragraph 28(10) as drafted could be read as having a different effect from that intended. These provisions could possibly be read as preventing an individual from obtaining legal aid for eviction if they unarguably entered as a trespasser but then regularised their arrangement by, for example, entering into a tenancy. The provision could also be interpreted as excluding cases from legal aid where an individual had initial consent to be present—for example, as a tenant—but no longer has such consent, for example, because of a dispute with their landlord. As government Amendments 74A, 74B and 74D concern the same point, I will deal with them together. These amendments do not represent a change in policy; rather, they are aimed at giving better effect to our stated policy. They therefore address the same objective as Amendment 74C. The Government’s amendments are more appropriate to meet the concerns that have been expressed because they leave no room for doubt that the provision achieves the effect that I have described and that the Government have always intended. These government amendments put beyond doubt that the exclusion in paragraph 28 of Schedule 1 in relation to trespassers will apply only when the person is both unarguably occupying a property as a trespasser and began their occupation as such. I hope that noble Lords will be reassured by that clarification. The next group of amendments relates to the provisions in paragraph 30 of Part 1 of Schedule 1, concerning housing disrepair cases. Amendments 77A, 77C and 77E relate to legal aid for damages claims by tenants relating to disrepair in rented homes—in particular, ensuring that when legal aid has been granted for a housing disrepair case, if the landlord makes arrangements for the repairs to be carried out, or carries them out, legal aid can continue for the damages aspect of the claim until the conclusion of the case. We have prioritised funding on cases which concern such fundamental issues as homelessness and the safety of the individual or their family. We are therefore retaining legal aid when serious disrepairs threaten the health of the client or their family and the client wishes to bring an action against their landlord to remove or reduce that risk. We are, however, generally excluding damages claims from the scope of legal aid because we take the view that these cases are essentially claims for money, which are a lower priority for funding than cases which involve more fundamental issues. We also consider that conditional fee agreements offer an alternative means of funding such claims. It may be that the intention of this and related amendments is generally to extend Schedule 1 to cover disrepair damages claims. In this context, we note that Amendment 77G disapplies a range of the exclusions set out in Part 2 of Schedule 1 which concern causes of action which can be used to obtain damages. As I have already said, we do not consider that damages claims for housing disrepair are a sufficient priority for funding and that conditional fee agreements present a viable alternative means to fund such claims. We recognise that, when a housing disrepair claim is funded under paragraph 30 of Part 1 of Schedule 1 to remove or reduce the serious risk of harm arising from disrepair, and the claim also includes a damages element, legal aid could be extended to cover the excluded damages aspect of the claim. This could happen under the rules for connected matters made under paragraph 40 of Part 1 of Schedule 1. Amendment 77F appears to be intended, in such cases, to allow funding for the damages aspect of a claim for disrepair to continue to be funded even where the disrepair itself has been addressed by the landlord. We do not consider this to be appropriate or necessary. I have already explained that we do not consider damages claims to be a high priority. In addition, where a landlord has carried out repairs, or has been ordered to do so, this should remove any doubt as to liability for the disrepair. If there continues to be a meaningful damages claim and a reasonable prospect of recovering damages, the client should be able to continue the damages aspect of the claim under a conditional fee agreement. This amendment may also, in part, be motivated by a concern that failure to fund the damages aspect of the case will prevent the legal aid fund from recovering any unrecouped costs. If so, this amendment is unnecessary. Where the damages aspect of a case continued under a conditional fee agreement, if the client were successful in obtaining damages, the statutory charge would ensure that any unrecouped funds expended at the earlier stages of the case by the legal aid fund would be recouped. In addition, noble Lords should be aware that legal aid will not in general be withdrawn where it is in the interests of the legal aid fund for it to continue. In an unusual case where the damages aspect of a funded case could not be continued under a conditional fee agreement, legal aid for a housing disrepair case could continue to its conclusion to protect public funds by obtaining a costs order, even when repairs have been carried out. Regarding Amendment 77B, paragraph 30 of Part 1 of Schedule 1 provides that legal aid is available for disrepair cases concerning, "““the removal or reduction of a serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family””." Amendment 77B deletes ““serious”” and therefore extends funding to cases where there is any risk to health or safety, however small. The Government’s intention throughout this reform process has been to focus our constrained resources on the most important cases. That is why the provisions in the Bill target legal aid on those disrepair cases where it is alleged that there is a serious risk to health or safety—it is important to stress the word ““alleged”” because claimants will not be required to prove the seriousness of the disrepair before funding can be granted. In any case where it is reasonably alleged that disrepair poses a serious risk to health or safety, legal aid will be available to enable the merits of the claim to be investigated. This would include, for example, instruction of a joint expert where possible to investigate the disrepair, in line with the housing disrepair pre-action protocol. While I recognise that some disrepairs start out small and then deteriorate, the reality is that we have to target funding as best we can. That means we cannot fund trivial cases. Amendments 77D, 77H and 77K appear to be aimed at making legal aid available in disrepair matters under paragraph 30 of Part 1 of Schedule 1, not only where the disrepair poses a threat to the health or safety of the legal aid client or a member of their family, but where the individual whose health or safety is at risk is a household member who is not related to the client. We have clearly stated our intention that legal aid should continue to be available in relation to remedying household disrepairs where it is the legal aid client, or a member of their family, whose health or safety is said to be at serious risk as a consequence of the disrepair. We consider it appropriate that, for example, an individual can apply for legal aid on behalf of their child or partner whose health is jeopardised. However, we see no reason why funding should be extended to other occupiers. These amendments could make schemes vulnerable to abuse by, for example, enabling a person who does not qualify for funding on financial eligibility grounds to obtain legal aid for a disrepair matter by virtue of having a housemate who qualifies for legal aid. We believe that our definition of the relevant family member, set out in paragraph 30(3), is broad enough to capture members of the household who have a sufficiently strong connection to the legal aid client. Government Amendment 77J relates to the definition of ““home”” used in relation to housing disrepair matters at paragraph 30 of Part 1 of Schedule 1. This is a minor, technical amendment which addresses a slight discrepancy between the definitions of ““home”” used in paragraph 30(4) and in paragraph 28(9). The latter paragraph includes ““other vehicle or structure”” in the definition, but paragraph 30(4) refers only to ““other structure””. Amendment 77J addresses this unintentional discrepancy and ensures consistency in Schedule 1. Amendments 78A and 78B appear to be aimed at making legal aid available if a residential occupier of a property brings a claim for damages where they have been harassed, perhaps by their landlord. The Government position is clear: limited legal aid resources should not be focused on cases concerning financial advancement and the obtaining of monetary damages, unless the claim has significant additional importance. For example, legal aid will remain available for damages claims concerning abuses of position or power, or significant breaches of human rights by a public authority, or for claims concerning sexual assault, or abuse of a child or vulnerable adult. These amendments seek to protect residents from unscrupulous landlords. I reassure noble Lords that there is already significant protection for residents. Paragraph 28 of Part 1 of Schedule 1 provides legal aid in relation to the eviction of an individual from their home, which will include damages claims against a landlord in relation to the unlawful eviction of a residential occupier. In addition, paragraph 32 of Part 1 of Schedule 1 provides legal aid so that those suffering harassment can obtain a protective injunction under the Protection from Harassment Act 1997. An injunction could be granted to prevent interference with the peace or comfort of a resident or to prevent services being unreasonably withheld by a landlord. Breach of such an injunction can bring a prison term of up to five years. For other meritorious damages claims that fall outside the scheme, a conditional fee agreement could be used. On the point that the noble Lord, Lord Beecham, made at the end of his speech about Amendment 90ZZA, we believe that the Bill contains significant safeguards in respect of mental health treatment. Amendment 90ZZB, however desirable, goes beyond what is currently provided by the current civil legal aid scheme. Because we have had to focus our resources, we have had to focus on those interests of the individual that are really of the most vital importance. I therefore hope that the noble Lord will withdraw these and other amendments. I know that that was quite a gallop through a very detailed set of amendments about what I fully acknowledge is an important issue, and I am sure that noble Lords will want to take tomorrow’s Hansard as their bedtime reading. I hope that they will see that some of the issues raised by the noble Earl, the noble Lord, Lord Best, and others are already covered by the Bill and that the Government have listened to some of these concerns. Perhaps we will return to some of them on Report. In the mean time, I ask noble Lords from both ends of Newcastle to withdraw their amendments.