Housing and access to legal aid

Housing and legal aid: general background

The current civil legal aid scheme is set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO. Generally speaking, in order to be eligible for civil legal aid under LASPO, an applicant must pass three basic tests:

1. The first test is that the case must be within the scope of the legal aid scheme. This means it must be of a type listed in Schedule 1 to LASPO. The Bar Council’s guidance Civil legal aid: Practical guidance for the Bar (November 2015) provides a useful technical summary of the matters covered: see pages 41 to 47 on housing.
2. The second test is a financial means test. This is a complicated procedure and the calculations are usually conducted by a legal aid solicitor on the applicant’s behalf. See Gov.uk, Civil legal aid: means testing (accessed 15 May 2018) for further details.
3. The third test is a merits test. This involves looking at (among other things) the applicant’s prospects of success in bringing the case, and a cost benefit analysis of providing legal aid funding. Detailed guidance on the merits test is set out in section 4 of the Lord Chancellor’s Guidance under Section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The housing charity Shelter has published a guide on how these three tests apply to housing cases: see Civil legal aid: scope and eligibility [accessed 15 May 2018].

Legal aid for civil legal matters not listed in Schedule 1 will only be available if the legal aid applicant successfully applies to the Legal Aid Agency for an “exceptional case determination” under section 10 of LASPO.

Under section 10, a successful exceptional case determination will involve demonstrating that:

…it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

The Lord Chancellor has issued two sets of guidance for the Legal Aid Agency to follow when making a determination, one relating to inquest cases and one to non-inquest cases:

• Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests)
• Lord Chancellor’s Exceptional Funding Guidance (Inquests)

Calls for change

Various bodies have called for legal aid to be introduced for early legal advice on housing matters.

For example, the Bach Commission (initiated by Labour and chaired by former Justice minister Lord Willy Bach) has called on the Government to review and extend the scope of civil legal aid for certain matters – including housing – in particular by reintroducing legal aid for early legal help in order to encourage early dispute resolution.

The Law Society has raised the issue of “advice deserts” in housing law, with some geographical areas having extremely limited access to law firms who provide housing advice which is available through legal aid. The Law Society is also calling for the reintroduction of legal aid for early legal advice on various matters, including housing.

The Government’s review

Prior to the 2017 general election the Government had committed to reviewing the operation of the legal aid provisions of LASPO within three to five years of their implementation.

On 30 October 2017, the then Lord Chancellor David Lidington laid the Government’s post-legislative memorandum for LASPO before the House: see Legal Aid, Sentencing and Punishment of Offenders Act 2012: Post-Legislative Memorandum, Cm 9486, October 2017. He also announced that he had asked Ministry of Justice officials to commence the promised post-implementation review of LASPO. He set out details of the intended scope of the review: Justice update, HCWS 204, 30 October 2017.

In March 2018 Justice minister Lucy Frazer confirmed that the issues covered by the review “will include changes made to provision of legal aid for housing issues”: see PQ 130718 [on Legal aid scheme: housing], 12 March 2018.