Draft Civil Legal Aid (Housing and Asylum Accommodation) Order 2023
(1 year, 11 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I beg to move,
That the Committee has considered the draft Civil Legal Aid (Housing and Asylum Accommodation) Order 2023.
It is a pleasure to serve under your chairmanship, Mr Stringer. This statutory instrument will expand the scope of civil legal aid to allow early legal advice before court on housing, welfare benefits and debt issues for those at risk of losing their home. It will modify part 1 of schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, known as LASPO, to bring legal advice for certain housing, debt and welfare benefits issues in scope of legal aid funding. It also modifies secondary legislation to introduce an additional fee to remunerate providers delivering the new early legal advice.
The statutory instrument will ensure that failed asylum seekers who face a genuine obstacle to leaving the UK remain eligible for legal aid to support them in obtaining accommodation support from the Home Office. It will do this by amending schedule 1 to LASPO to link legal aid for asylum seekers to new support provisions being introduced by the Home Office. The draft order is to be made using the powers conferred by LASPO.
The statutory instrument lays the necessary foundations to ensure better wraparound legal support for those facing the loss of their home by enabling the replacement of the current housing possession court duty scheme, the HPCDS, with the housing loss prevention advice service, the HLPAS. The instrument is an important step in delivering a key commitment made in the Government’s recent consultation on reforming the way we deliver housing legal aid services.
Civil legal aid is available to an individual if the legal service they need is listed in part 1 of schedule 1 to LASPO. Legal aid may also be available on an exceptional basis where there would be a breach or risk of a breach to an individual’s rights under the European convention on human rights or any retained, enforceable EU rights; this is known as exceptional case funding, or ECF. Eligibility for legal aid, for both in-scope matters and ECF, is subject to statutory means and merits assessments. The means test sets out that if an individual’s capital or disposable income is above a certain threshold, they would certainly not be eligible for legal aid.
There are different merits tests depending on the type of case but, for most cases, the merits test provides for a cost-benefit test and a prospects of success test. If those tests are not met, funding will not be granted. Under the current arrangements, legal aid for social welfare law matters, such as debt, housing and welfare benefits, is limited to the most urgent circumstances—for instance, in the event of an individual losing their home through eviction or repossession. This is to ensure that legal aid is targeted at those who need it most.
However, during the post-implementation review of LASPO, we heard from respondents that the LASPO reforms, which came into effect in 2013, might have caused increased financial cost to individuals, their support networks and the Government. Respondents claimed that individuals experiencing social welfare legal problems, especially housing-related matters, were now unable to resolve their problems at an early opportunity, and were therefore likely to experience problems clustering and escalating, requiring costly intervention. Frequently cited examples in the review included increased use of court services as individuals were issued with possession proceedings; greater reliance on welfare benefits, and on temporary and permanent accommodation provided by their local authority following eviction; and increased use of health services for stress and anxiety.
That brings us to the scope of the amendment. Since 2019, my officials have not only considered the evidence provided in the LASPO post-implementation review, but worked closely with legal aid providers and other Government Departments to finalise the terms of the amendment. From November 2021 to January 2022, the Ministry of Justice ran a consultation on the housing legal aid reforms in the instrument, amending our proposals in response to feedback to ensure that the amendment presents a practical and effective way forward.
This order seeks to help individuals to resolve problems before they lead to housing loss by making legal advice on housing, debt and welfare benefits issues available from the moment the individual receives notice that possession of their home is being sought. It is hoped that intervention at that point will enable affected individuals to resolve matters, potentially preventing the loss of their home and reducing demand on the courts and other public services. The advice will not be means-tested, meaning individuals will not need to pass any financial eligibility test to receive it. If the instrument is approved, the advice will be available from 1 August 2023.
In addition to early legal advice, the amendment will continue to provide an “on the day” in-court duty service whereby the Government will fund representation for defendants in possession cases. Both elements will constitute the new housing loss prevention advice service. The instrument will introduce new fees to the remuneration regulations to ensure that legal aid providers can be paid for services provided under the HLPAS. It also amends the procedure regulations so that certain procedural requirements will not apply to the new scheme to allow for its efficient operation.
Let me turn to the amendment on legal aid for failed asylum seekers. It remains the Government’s policy to ensure that failed asylum seekers can obtain accommodation support when they are destitute and there is an obstacle preventing them from leaving the UK. This is a small amendment to ensure the continued provision of legal aid for failed asylum seekers obtaining accommodation. Currently, legal aid for asylum accommodation is tied to sections 4 and 95 of the Immigration and Asylum Act 1999. When the upcoming amendments to the Immigration Act 2016 come into force, they will repeal section 4 of the 1999 Act and introduce new section 95A, which has the same intention of ensuring failed asylum seekers can access accommodation support.
This statutory instrument simply tidies up the rules so that they are consistent with the amendments to the 2016 Act. It is a purely technical amendment to LASPO to ensure the Government’s policy intention continues to be met, and that there is no change in access to legal aid for asylum accommodation support. This part of the order will come into force only when the relevant amendment to the Immigration Act 2016 comes into force.
Before concluding, I will cover some Peer and Committee queries of which we have been made aware. First, I will draw attention to the issues raised by the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee. The order was previously laid but had to be withdrawn. Following the laying of the previous draft order before Parliament on 17 October 2022, the Joint Committee on Statutory Instruments noted that it was not clear when all its aspects were due to come into force. We accepted that point and decided to withdraw and re-lay the previous draft order, amending the commencement provisions to ensure clarity on when each part of the order comes into force.
The Secondary Legislation Scrutiny Committee queried how the Government intend to raise awareness of the early legal advice for housing, debt and welfare benefits. We take that matter seriously, recognising that it is often difficult to reach those most at need. Therefore, my officials will be working closely with the Department for Levelling Up, Housing and Communities and His Majesty’s Courts and Tribunals Service to ensure that legal support is signposted to individuals facing proceedings at the earliest opportunity.
In conclusion, the amendment will make early legal advice available to individuals facing the potential loss of their home, and it will ensure that the Government maintain their policy of providing legal aid to failed asylum seekers who need accommodation before they leave the UK.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer. I thank the Minister for his opening remarks. The Labour party will not oppose the draft Civil Legal Aid (Housing and Asylum Accommodation) Order 2023. We support in principle the introduction of non-means, non-merits tested initial advice for housing, welfare benefits and debt, but we are concerned about the sustainability of providers and whether they have the resources to deliver advice, particularly on welfare benefits and debt, as they were largely removed from scope by LASPO in 2012.
This Government’s track record on both criminal and civil legal aid has proven to be nothing but disappointing and has led to a justice system on its knees. We are now 10 years from the passing of LASPO. Post pandemic, and in the midst of a cost of living crisis, morale in the public sector is at an all-time low. Years of under-investment in the legal aid system, coupled with cuts in 2011 and 2014, have resulted in large numbers of practitioners leaving legal aid practices, and firms are struggling to recruit across the board. There are also issues of firms taking on less work under a legal aid contract as the work is deemed to be loss-making. Law Society analysis suggests that the number of providers starting legal aid work could drop by a third by 2025. Between 2011 and 2022, we have seen a drop of nearly 40%. What assessment has the Minister made of the impact of that on the courts backlog?
The last time fees were increased was in 1996—over 25 years ago. The Government imposed a further 10% fee cut in 2011. That represents a real-terms cut of 49.4% in fees to 2022—almost half. Not only are we still waiting for answers as to why the Government have not committed to the recommendations of their own criminal legal aid review; on civil legal aid, we must wait until 2024 to have a review, so any changes are not likely to take place until 2025 at the earliest. That delay creates a threat in itself. Unless interim measures are put in place to shore up existing provision, the risk is that there will be no system left by 2025. Can the Minister explain why it will take this long? These delays are doing nothing other than worsening the current chaos in the courts. What assessment has he made of the impact of these delays on the existing courts backlog?
Across England and Wales, 65% of the population do not have access to an immigration and asylum legal aid provider. In the Minister’s own constituency of Finchley and Golders Green, there is a total of zero immigration and asylum legal aid providers. What advice is he giving to his constituents? What steps are the Government taking to tackle legal aid deserts, so that victims can have access to justice?
Turning to housing, this winter the system is at crisis point. According to the June to September 2022 mortgage and landlord possession statistics, landlord possession claims have more than doubled in the last year, and possession orders have nearly tripled. The demand for legal services in housing is, understandably, growing, yet currently around 12.5 million people in England live in a housing legal desert.
We are witnessing a growing and dangerous justice gap in the civil legal sector. The consistent lack of serious action from this Government threatens the sustainability of our entire justice system. We currently have a legal aid system running on empty. I therefore urge the Minister to urgently review the scope of civil legal aid and the worsening decline in the number of civil legal aid providers. With the current cost of living crisis, it is simply unfeasible for people up and down the country to travel hundreds of miles to access their closest legal aid provider.
This statutory instrument will do little to improve the wider state of disrepair that the civil legal aid system is currently in, as civil legal aid is put out of the reach of more and more people who need it. The Government have had 13 years to nurse the justice system back to health, and they have failed miserably. I hope the Minister will consider the concerns I have raised. The Labour party supports the draft statutory instrument.
Mike Freer
I am grateful for the shadow Minister’s contribution and support for this extension to legal aid. Let me answer a couple of his points.
I do not have the figures on civil legal aid, but I reassure colleagues and the shadow Minister that the recent injection of more than £135 million into the criminal legal aid system has, since the new contracts came into force in October last year, seen an increase in providers, firms and duty solicitors. It is, then, simply not true to suggest that the legal aid system is about to collapse. I expect the reform of the civil legal aid process to result in a similar improvement in provision.
Afzal Khan
The Minister says it is not true that the legal aid system is collapsing; perhaps he can explain why the courts have a 60,000 backlog and we see, year after year, a decline in the number of people who practise legal aid.
Mike Freer
Without getting into a debate that is not really to do with this statutory instrument, let me put it firmly: the outstanding case load in the criminal courts was on a downward trajectory until the industrial action by the Criminal Bar Association. The uptick in the backlog was a direct result of that action. Since the members of the Criminal Bar Association went back to work, we have started to see a downward trajectory in that case load.
On sustainability, I repeat that the early indications from the injection of more than £135 million into the criminal side of legal aid are that there has been an increase in the number of legal aid practitioners. I expect the same impact once we have reformed civil legal aid.
The particular changes in this statutory instrument will see a £10 million injection into civil legal aid, on top of the £30 million increase in the previous year. We are spending a significant amount of money to support people through civil legal aid. It remains a focus of the Department to reform all aspects of legal aid to make sure that it is both efficient and effective and that the money is well spent. I make no apology for that.
I thank the shadow Minister for his interest in my constituency. I reassure him that we have no shortage of a vibrant legal ecosystem in London. On top of that, the area of Finchley and Golders Green and the neighbouring seats of Hendon and Chipping Barnet are well served by excellent MPs.
Question put and agreed to.