Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Best Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Lord Best]

75: Schedule 1, page 141, line 7, at end insert
“(1A) Services provided to an individual at risk of losing their home under sub-paragraph (1) shall include services in relation to the entitlement of the individual to welfare benefits relating to housing costs.”

[Lord Best]

My Lords, Amendments 76 and 77 are consequential on Amendment 75. Amendment 75 relates to legal aid for work covering welfare benefits advice and casework relating exclusively to the potential loss of a home because of the non-payment of rent or mortgage. The amendment is advocated by Shelter and backed by Citizens Advice, Justice for All, the Law Society, the Law Centres Federation, the Salvation Army, Young Legal Aid Lawyers, the Legal Aid Practitioners Group, the Housing Law Practitioners Association, the Bar Council and the Advice Services Alliance.

The amendment addresses an anomaly in the Bill. Very properly, the Bill leaves legal aid as it is in funding work to defend possession proceedings in the courts, and I commend the Government for prioritising this support. However, the proposal in the Bill is for legal aid funding to be withdrawn for the advice and support surrounding possession proceedings that at present prevents these housing cases from clogging up the courts and leading unnecessarily to homelessness thereafter. I gather that between one-quarter and one-fifth of the time of the solicitors and caseworkers dealing with clients’ potential loss of their homes goes on sorting out the non-payment of rent or mortgage, usually relating to benefit claims. Typically, this means discovering that arrears have built up because of a problem with the administration of housing benefit. Unsurprisingly, in view of the complexity of these arrangements, local authorities can make bureaucratic errors, claims forms can be lost, incorrect payments can be made and so on. At present, legal aid makes possible the service that can often sort out these matters through an expert contacting the officials on behalf of a probably confused or inarticulate tenant. The same goes for claims for support for mortgage interest by homebuyers who lose their jobs but are likely to be unfamiliar with the processes of seeking benefits.

The shift next year from councils administering housing support for tenants to the Department for Work and Pensions doing so is likely, at least for the first year or two, to compound the problem. It is not just that officials new to the task will need to learn the ropes but that the loss of close working relationships between local landlords and local authority benefit teams will take away an important dynamic for sorting out these difficulties.

Shelter’s extensive experience of thousands of cases each year is that the possession claims due to rent arrears can often be headed off at the pass by the Shelter adviser making speedy representations to the housing department that may well have failed to assess a housing benefit claim appropriately. Without legal aid, thousands of cases would certainly have gone to court, using court time and public money, and might still not have been resolved. Worse, without this help many tenants would have lost their homes through no fault of their own.

On other occasions, tenants will leave matters until the last moment and the case will have to go to court. However, an adjournment will often be granted, usually for four weeks. During that time, the legal aid-funded adviser can beaver away, establishing the facts and negotiating as necessary with benefits officials. If in the future the advisers in such cases are not able to handle the support with benefits claims, if they can deal with matters only in the courts and are not free to treat with officialdom on behalf of the client, and if they have to sit on their hands and do nothing for four weeks after an adjournment, people will lose their homes and costs to the taxpayer will rise. The courts will have more adjournment hearings, landlords will not get arrears paid off and justice will not be done.

The chief executive of the South West London Law Centre has explained to me that, in future, to engage the housing benefit officers in a dialogue it will be necessary to issue witness summonses to bring them to court because dealing with them outside court processes will no longer be funded. That would mean costs to benefit officers from having to travel to the court and, no doubt, spend time hanging about, perhaps facing difficulties from not having all the right files with them. It is obviously better for the legal aid-funded expert to deal directly with the official before or during the four weeks of adjournment of a case when so often the problem can be sorted out. If benefits advice relating specifically to possession proceedings is taken out of the scope of legal aid, the funding that remains covered by it—75 per cent to 80 per cent of expenditure—will be much less effective.

In Committee, I argued for the continuation of legal funding to cover many other aspects of housing cases. However, the amendment before us today is much more modest, much more focused and simply retains the scope of legal aid to provide benefits advice and casework where possession is being sought by the landlord or the mortgage company. It seems certain to cost the state a good deal less than removing from the scope of legal aid the funding that pays for the work that prevents and solves problems, and ensures that the rest of legal aid spending and the time of the courts is not wasted when matters could be settled away from the courtroom. It means that the Bill will not unwittingly lead to the injustice of people unnecessarily losing their homes because there was no one there to sort out the problems with their benefits, particularly in the next year or two when the whole housing benefit system will go through such dramatic change.

The amendment represents a very modest change to the Bill but an important and cost-effective one. I hope it is acceptable to the Minister. I beg to move.

[Lord Howarth of Newport]

My Lords, I fully endorse the amendment proposed by the noble Lord and will add just two points for the consideration of the House that I do not think he touched on. I take it that his amendment would encompass legally aided advice in relation to council tax benefit as well as to housing benefit and support for mortgage interest, which he mentioned. We know that, under the changes that the Government propose, adjudications about council tax benefit will become very contentious. The rules for council tax benefit will be made locally and will vary, perhaps significantly, from one local authority area to another. I wonder whether when he responds to the debate the noble Lord, Lord Best, would comment on that.

My other point is a reflection that I should like to put to the Minister. Having looked at outcomes and data provided by the Legal Services Commission, Citizens Advice has found that legal aid to advise benefit claimants represents a very good investment, certainly where housing is concerned. It has computed that for every £1 invested in advice on housing benefit, some £2.34 is saved for the public purse. Indeed, across a range of benefits—others are outside the scope of the amendment—it has found that the saving to the public purse may add up to as much as £8.80 for every £1 invested. I understand that the Government do not agree with those figures that Citizens Advice has put forward. It would be helpful if the Minister could say something about those calculations. If the Government do not agree with them and he is not ready to refute them in detail this evening, perhaps he will write to those of us who have been actively involved in this Bill to explain on what grounds the Government refute the Citizens Advice calculations.

--- Later in debate ---

[Lord Best]

My Lords, I am grateful to the noble Lord, Lord Howarth, for his support. Certainly council tax benefit is going to cause some administrative headaches in the months and years ahead, and that would be part of the package covered in the amendment, as would support for mortgage interest. However, housing will be the big one, not least—I promise that I will not go into this—the under occupation penalty that is going to be introduced, over which there will be endless wrangles, and there will be arrears for some people, leading, I fear, to possession proceedings.

I am also very grateful for the support of the noble Lord, Lord Beecham, who made the point that mistakes will undoubtedly occur. That is the way of things. Without the opportunity to make representations directly to the administrators, those mistakes will go undetected and people will lose their homes as a result.

I am grateful to the noble Lord, Lord McNally, for clarifying a number of matters and for giving me some important food for thought. He told us that where possession action is contemplated, legal aid might be available to agree, with the landlord, to an adjournment of the case. That is important. However, the amendment is trying to say that there must be the opportunity to spend legal aid funding on the representations that follow with the people administering the housing benefit.

I was glad to be clear that funding will be available to negotiate with the mortgage company where people are in arrears with their mortgage repayments. However, why would it therefore not be available for dealings with the housing benefit administrators, who may be the ones with whom the dialogue needs to be held? An expert needs to talk to the people in question. I fear that leaving people to their own devices will not work.

In terms of evidence, I have received the usual pile of representations from bodies representing other bodies but also from some front-line people. The Nottingham Law Centre sent me a letter last week saying:

“’Day in day out we represent people who are in arrears due to issues with benefits (particularly Housing Benefit)”.

It says:

“What is the point of representing a client facing eviction, identifying issues with benefits (particularly Housing benefit which is extremely complex) securing an adjournment to resolve those issues but being unable to help to resolve them? It will lead to a need for further adjournments thereby clogging up the courts or it will make it harder to persuade landlords to agree to adjourning cases as there will be less likelihood of a successful result”.

This is the kind of evidence that people who are trying to resolve these issues are faced with. I am afraid they are likely to be undermined without an amendment of this kind. However, at this late hour, and with the opportunity to ponder some of the Minister’s helpful remarks, I beg leave to withdraw the amendment.

Amendment 75 withdrawn.