Question to the Ministry of Justice:

To ask the Secretary of State for Justice, how the Legal Aid Agency monitors whether legally aided housing cases are being actively resolved.

The scope of legal aid for housing matters is set out under paragraphs 33-35 of Schedule 1 to Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This includes civil legal services relating to loss of home and ancillary housing, debt and welfare benefit service, provision of accommodation and assistance to an individual who is homeless or at risk of homelessness and risk to health and safety in rented accommodation.

Legal aid for housing matters may be provided as Legal Help which includes advice and assistance on the matters set out above or Legal Representation which would include representation before a court or tribunal. The Legal Aid Agency (LAA) also funds the Housing Loss Prevention Advice Service (HLPAS) which covers early legal advice on housing, debt and welfare benefits issues to individuals with evidence showing they are at risk of possession proceedings, loss of their home or illegal eviction; and on-the-day emergency advice and advocacy to anyone facing possession proceedings.

Eligibility for legal aid subject to strict statutory criteria and the provision of and payment for legal aid services is governed by Contracts with legal aid providers. Both legal aid legislation and the Contracts contain a number of provisions to ensure that public funds are used proportionately and appropriately.

Legal aid provided under Legal Help or Legal Representation is subject to a strict financial eligibility test and a legal merits test as set out in the Civil Legal Aid (Merits Criteria) Regulations 2013. To qualify for Legal Representation in respect of any housing matter the proportionality test as described at regulation 8 must be met and continue to be met throughout the duration of proceedings.

Regulation 40 of the Civil Legal Aid (Procedure) Regulations 2012 requires all legal aid providers to report to the Legal Aid Agency (LAA) any changes in circumstances which would materially affect a client’s eligibility for Legal Representation alongside other matters which may impact on eligibility, for example, failure to accept an offer to settle or to use and alternative dispute resolution method or issues relating to the client’s conduct. The LAA may withdraw a determination that the individual qualifies for Legal representation if it concludes the eligibility criteria are no longer met or it is satisfied that the client is requiring proceedings to be conducted unreasonably so as to incur unjustifiable expense.

Legal Representation is subject to scope and cost limitations setting out what work may be undertaken and the maximum amount of legal aid costs that may be claimed. To extend either scope or costs an application must be made to the LAA setting who will consider whether the additional funding should be authorised with reference to the applicable regulations. This ensures appropriate and proportionate use of legal aid funding.

Clause 2.4 of the Standard Civil Contract 2024 Standard Terms requires legal aid providers to work with the LAA to achieve value for money and to ensure that public money is spent with probity, accountability and in the public interest.

Additionally, any claims for payment for legal aid work are subject to assessment in accordance with the provisions of the Standard Civil Contract 2024. In particular under paragraph 6.9 sets our hat all assessments of Contract Work are to be on the Standard Basis as defined by Civil Procedure Rules (CPR).

CPR 44.3(2) states that: “Where the amount of costs is to be assessed on the standard basis, the court will— (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.”

The Legal Aid Agency (LAA) does not play an active role in case progression where all providers of legal aid services are independent providers of services who are bound to act in the best interest of the client taking into account the provisions of their legal aid contract and any relevant professional body rules. However, in addition to the reporting obligations referred to above, automatic enquiries are triggered on Legal Representation cases that have had no legal aid activity for a period of more than 365 days. Failure to respond to these enquiries may result in the withdrawal of legal aid. Furthermore, the LAA has a representations process which allows opponents (or other third parties) to report to the LAA circumstances which may affect an individual’s eligibility for legal aid.

There is no specific guidance on “appropriate use of public funds for disputes that do not materially affect housing safety or security”. However, statutory and contractual provisions governing the appropriate use of public funds in all civil cases are set out in the Regulations and Contract referred to above. Supporting guidance on the application of the statutory and contractual framework is set out in the Lord Chancellor’s Guidance under s.4 LASPO and the Costs Assessment Guidance both of which legal aid providers have a contractual obligation to comply with when carrying out legal aid work.

The average cost of a housing case under each legal aid scheme for the last five financial years is set out in the table below. These costs will include all housing cases within scope of legal aid as set out above. Average costs have been broken down by the type of legal aid provided.