08 May, 2014
This means that many cases, which were previously dealt with by housing solicitors, are no longer eligible for legal aid. When bringing the reforms into force, the government claimed that a number of deserving cases that would no longer qualify for legal aid, could still be considered if they are 'exceptional'. 'Exceptional' is defined as cases that breach a person's human rights.
The exceptional case funding scheme is designed to safeguard the most deserving cases and ensure legal aid funding is available where there is a breach of a person's human rights. However, figures released from the Ministry of Justice last month reveal that just one housing case was granted exceptional legal aid funding since April 2013.
The figures also reveal that out of 65 housing cases, the only one to be granted exceptional legal aid funding followed a threat of judicial review. The application was made on behalf of a schizophrenic tenant facing eviction and was initially rejected by the Legal Aid Agency. The law firm representing the tenant then applied for judicial review funding before the Legal Aid Agency granted exceptional case funding 2 days later.
The legal aid reforms now face further criticism that the most vulnerable tenants are unable to secure the legal aid funding they require to support them throughout legal action and even claims that the exceptional case funding scheme was announced to quieten the criticisms being made in relation to the controversial legal aid reforms.
Housing Barrister, Jan Luba, has been quoted as saying: 'Given the number of people in housing need, 65 applications is surprisingly low, and a success rate of 1 in 64 is extraordinarily low.' This highlights concerns within the sector that a number of vulnerable and deserving tenants are not able to secure legal aid funding.
However, in response to criticisms a spokesperson for the Legal Aid Agency stated that the threat of judicial review had no bearing on the outcome of decisions made.
Despite the myth that legal aid is no longer available for housing cases, certificates are still available for matters such as homelessness and defending possession proceedings and warrants of possession. Although many critics of legal aid funding will argue that many tenants are not deserving of legal aid funding, landlord and tenant matters can be a highly complex area of law, especially where a tenant is vulnerable. In some cases, having a qualified lawyer to represent the tenant means litigation proceeds more smoothly and settlement is considered at an earlier stage.
The good news for social landlords is that there is less chance of undeserving cases being defended, meaning lower legal costs for landlords. Our clients are frequently frustrated when hopeless cases are dragged out through the courts without reasonable consideration being given to settlement. Given the government's increased awareness that only appropriate cases should receive legal aid funding, the approach taken by Forbes Solicitors is to challenge legal aid funding where we believe that it is not appropriate for a matter to be funded by the public. Forbes find that this is an effective way of focusing tenants' solicitors minds on the relevant issues in question and can result in legal aid funding being withdrawn from undeserving cases and disputes being settled in a more efficient way.