Legal Aid Agency – The Grinch of Christmas?
Posted on 21st December 2016
In the lead up to Christmas, most of us will be looking forward to enjoying the cosy environment of a warm house and celebrating the festive season together with our friends and family. We may even wish for a “White Christmas”, as the romanticism of the Christmas festivities focus on enjoying the snow from a warm environment, synonymous with animals hibernating over winter.
However, for some, the harsh reality of a “White Christmas” means leaking roofs, damp walls and a ruined holiday. For people living in severe disrepair, this is the sad reality they are faced with all winter long. The impact of this is felt even more severely amongst the vulnerable, such as the elderly and people with long term illnesses, who are particularly affected by cold weather.
Changes to legal aid
Prior to April 2013, legal aid was available to these vulnerable groups to allow them to bring legal proceedings against their landlord for failure to carry out remedial works within a timely manner. Legal aid funding was also available to allow the tenant to claim compensation from their landlord for the inconvenience and distress they endured, along with any out of pocket expenses. Akin to the Grinch who stole Christmas, the changes have taken away these opportunities from the unfortunate victims of disrepair.
From 1 April 2013, cuts to the availability of Legal aid in disrepair cases were implemented, reducing this to very narrowly defined criteria. Under the present regime, the Legal Aid Agency will only fund disrepair cases where there is a “serious risk of harm to the health or safety” of the occupants (LASPO Schedule 1, Paragraph 35, Part 1) and this is further limited by the fact that it does not include any claim for damages. Therefore, any damages arising from a disrepair claim will fall out of scope and must be funded separately from the repairs claim.
There is then an issue to consider as to how the above criteria can be satisfied. This is a relatively high threshold that many people will not be able to satisfy. For example, an increase in coughs or colds, although potentially attributable to the disrepair, is unlikely to meet the standards required by the LAA. Additionally, even if there is a serious medical condition that is being exacerbated by the disrepair, it is unlikely that the LAA will accept this without corresponding medical evidence.
This then leaves us with thousands of tenants that are suffering in properties that are in a serious state of disrepair but cannot afford to pay privately to bring proceedings against their landlord. Many of these tenants are living in properties with large families and low incomes and it is therefore unaffordable for them to pay private fees at market rates. This also means that the tenant who has suffered with the effects of disrepair such as chest infections, embarrassment at the state of their property and ruined belongings for many years will have to fight for the compensation they deserve themselves without the benefit of legal representation.
As an alternative, many firms, including Hodge Jones and Allen, offer the possibility of conditional fee agreements (ie no win no fee) to clients wishing to bring claims against their landlord. Conditional fee agreements have seen tremendous growth in popularity since the LAA cuts. This type of agreement is often the only option for lower-income families and also allows for a claim for works and compensation to be pursued simultaneously. However, due to the risks involved, firms have to make quite harsh decisions on which cases to take on under this type of scheme and cases involving minor disrepair or where causation is unclear, compensation only claims less than £10,000 and claims against private landlords, where recoverability of costs is problematic, will often be excluded. However, here at Hodge Jones & Allen we will always try to help where we can and as a result we have run many successful CFA (ie no win no fee) cases in the past, securing considerable damages for our clients and an order for works.
The future for legal aid in disrepair cases
Is there any future for Legal aid in disrepair cases? If the current trend is continued, the only foreseeable future is further reductions in funding, leaving many more cold and uncomfortable Christmases for tenants all over the country. Although something to be thankful for this Christmas is the increased use of CFAs, giving hope to anyone living in disrepair.
By Siddiq Fazaluddin and Noa Mozes, social housing team.