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11.3The category definitions define housing work as:
•possession of the home, other than mortgage possession and orders for sale:
1Mortgage possession and orders for sale are in the debt category, and as such required to go through the telephone gateway. •eviction, including unlawful eviction and planning eviction;
•provision of accommodation and assistance under Parts 6 and 7 Housing Act 1996 for an individual who is homeless or threatened with homelessness;
•provision of accommodation by way of community care services to an individual who is homeless or threatened with homelessness;
•housing disrepair, to the extent it is in scope;
•applications to vary or discharge an injunction under Housing Act 1996 s153A;
•injunctions under the Protection from Harassment Act 1997 arising from housing matters;
•accommodation and support for asylum seekers etc;
•exceptional funding grants on any other matter concerning the possession, status, terms of occupation, repair, improvement, eviction from, quiet enjoyment of, or payment of rent or other charges for premises (including vehicles and sites they occupy) which are occupied as a residence, including the rights of leaseholders, allocation, transfers and the provision of sites for occupation.
Possession cases
11.4Defences to claims for possession in cases other than mortgage cases are in scope and in the housing category. Legal Help will be available for initial advice, and you can apply for a certificate for representation in court should that become necessary.
11.5Mortgage possession claims are also in scope, but are in the debt category (as are possession claims arising out of secured second charge loans). Each housing contract is actually a housing and debt contract, and includes a notional four debt matter starts per year, as well as a licence to do debt certificated work. However, debt is a mandatory gateway category. This means that a client needing Legal Help must go through the gateway unless they are exempt (see para 3.11 above). The gateway will refer clients requiring representation to face to face providers. If you are approached by a client who needs representation, because proceedings have already been issued and the merits test is met (see below), you can apply for representation without needing to go through the gateway, though you cannot sign a Legal Help form to fund the application unless you contact the gateway and get a referral number. You can exercise delegated functions to grant a debt certificate in appropriate cases.
2FAQ 91, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf.11.6LASPO Sch 1 Pt 1 para 33 says that civil legal services in relation to court orders for possession are in scope. This does not mean that you must wait until proceedings are issued before any legal aid becomes available, though there must be a real prospect of that. The LAA has said that ‘formal written notification that proceedings will be issued (such as a section 8 or section 21 notice)’ will be enough, although a certificate will not be granted until proceedings have actually been issued.
3FAQ 98, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. Prior to that, you may grant Legal Help.
11.7Therefore, general advice on the theoretical possibility of possession proceedings, or advice on the implications of a client’s rent arrears at an early stage, will be out of scope. But once the landlord has issued notification of intent to take proceedings, legal aid – in the form of Legal Help – will be available. Once proceedings have actually been issued, you can apply for a certificate, using delegated functions if necessary, if the client has a defence (or a realistic prospect of arguing that possession would be unreasonable). If not, you can still attend court to offer mitigation using Help at Court.
11.8The merits test for grant of a certificate in possession proceedings is:
4Civil Legal Aid (Merits Criteria) Regulations 2013 reg 61, amended by Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014 to provide that the prospects of success test to be applied is that in regulation 43 of the 2013 regulations. Regulation 43 was amended by Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 SI No 781 reg 2(4) to allow for grants in the borderline and marginal, but not poor, categories.•the standard criteria are met (see para 5.92 above);
•the individual has a defence (including that it would be unreasonable for the court to make an order for possession in the circumstances);
•prospects of success are:
•borderline, or marginal or better; and
•the proportionality test is met (see para 5.104 above).
11.9Many possession cases involving rent arrears will have, as the underlying cause or a contributor to it, problems with housing benefit. LASPO Sch 1 Pt 1 para 33(3) applies the Part 2 exclusions, including the welfare benefits exclusion. The effect of this is that work done in relation to the possession proceedings is in scope, but work done in relation to housing benefit is out of scope. You can investigate the housing benefit position to prepare a defence to the possession matter – which may include preparing witness statements, or even summonsing housing benefits officers – and can seek an adjournment for the client to resolve the benefits matter themselves. But any work in assisting the client with that resolution will not be claimable.
5FAQ 107, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf.11.10Judicial review of housing benefit and other local authority financial assistance is in scope, though would fall into the welfare benefits and public law categories.
11.11Where a client does not have a full or partial defence to the proceedings (including that it would be unreasonable for the court to make an order for possession in the circumstances) it is unlikely that a certificate would be justified, though Help at Court may be granted where it is conceded that possession is justified but to argue for suspended possession.
6Lord Chancellor’s Guidance on Civil Legal Aid para 6.9. See para 5.54 of this book for more on Help at Court.11.12Where legal aid has been granted in possession proceedings, it will also cover work done on a counterclaim, even if the subject of the counterclaim would be out of scope as a freestanding claim. The Part 2
7LASPO Sch 1 Pt 2. exclusions of assault, battery and false imprisonment claims, trespass to goods and trespass to land, damage to property and breach of statutory duty do not apply to counterclaims in possession proceedings, so all may be pleaded and claimed for.
8LASPO Sch 1 Pt 1 para 33(7). See also para 11.39 below.
11.13Possession of ‘the home’ includes houses, caravans, houseboats and other vehicles that are the individual’s only or main residence, together with the land on which they are located.
9LASPO Sch 1 Pt 1 para 33(9) and (11).11.14Legal aid is not available to defend possession proceedings brought against squatters – that is, where there are no grounds for arguing that the individual is occupying otherwise than as a trespasser, and no grounds for arguing that their occupation began otherwise than as a trespasser.
10LASPO Sch 1 Pt 1 para 33(10).Homelessness and allocations
Housing Act 1996
11.15Both Legal Help and, in appropriate cases, legal representation, are available to individuals who are homeless or threatened with homelessness
11As defined in Housing Act 1996 s175. and seeking assistance under Part 6 or 7 of the Housing Act 1996. LASPO Sch 1 Pt 1 para 34 says that ‘civil legal services … in relation to the provision of accommodation and assistance for the individual’ are within scope. This is relatively broad and will cover advice on entitlement and suitability of accommodation for homeless people (although legal aid is not available in relation to allocations and suitability of accommodation to people who do not fall within the definition of ‘homeless’, which is the same as in section 175 of the Housing Act 1996
12LASPO Sch 1 Pt 1 para 34(3).), as well as assistance with making an application and any review and appeal that may follow. All such work should be carried out as part of one matter.
11.16Legal Help will cover initial advice, the application and any review. A certificate for legal representation will cover an appeal to the county court, or a judicial review. The merits test for homelessness cases is the same as for public law more generally.
13Civil Legal Aid (Merits Criteria) Regulations 2013 reg 2 – see definition of ‘public law’. The test is:
•the standard criteria are met (see para 5.92 above);
•all administrative appeals and alternatives to court have been exhausted;
•a letter before claim has been sent (only relevant to judicial review);
•the proportionality test is met (see para 5.104);
•prospects of success are:
•moderate or better; or
•borderline or marginal, and the case of significant wider public interest, of overwhelming importance to the individual or the substance of the case relates to a breach of Convention rights.
14Civil Legal Aid (Merits Criteria) Regulations 2013 reg 56, as amended, most recently by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016. The borderline or marginal criteria will often be satisfied in cases involving homelessness.
11.17You can use delegated functions to grant emergency legal aid in homelessness cases, and in judicial review cases involving homelessness.
15Standard Civil Contract 2013 Specification para 5.3.Accommodation by way of community care services
11.18Legal aid (both Legal Help and legal representation) is available in the housing category to provide advice and representation to individuals seeking accommodation under certain community care provisions (as set out at LASPO Sch 1 para 5). The main provisions that housing providers use include:
•Children Act 1989 s17 for families with children;
•Children Act 1989 s20 for homeless children;
•Children Act 1989 ss 22A, 22B, 22C, 23, 23B, 23C, 24, 24A and 24B (the ‘leaving care’ provisions) for young people previously accommodated by children’s services;
•Mental Health Act 1983 s117 (after-care services for individuals previously detained under Mental Health Act 1983 s3);
•Care Act 2014 Pt 1 for individuals who have care and support needs.
11.19Legal Help will cover initial advice and assistance including consideration of any assessments carried out by local authorities and drafting pre-action letters under the judicial review Pre-Action Protocol. A certificate for legal representation will cover a judicial review. The merits test for community care cases is the same as for public law more generally.
16Civil Legal Aid (Merits Criteria) Regulations 2013 reg 2 – see definition of ‘public law’. The test is:
•the standard criteria are met (see para 5.92 above);
•all administrative appeals and alternatives to court have been exhausted;
•a letter before claim has been sent (only relevant to judicial review);
•the proportionality test is met (see para 5.104);
•prospects of success are:
•moderate or better; or
•borderline or marginal, and the case of significant wider public interest, of overwhelming importance to the individual or the substance of the case relates to a breach of ECHR rights.
17Civil Legal Aid (Merits Criteria) Regulations 2013 reg 56, as amended, most recently by the Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016. 11.20Providers do not have delegated functions to grant emergency funding in these cases save for Children Act 1989 s20 and the provision of urgent services pending completion of an assessment under Care Act 2014 s9(3). If the individual needs emergency funding for other cases (including temporary accommodation under Children Act 1989 s17) the provider must make an emergency application for a certificate on CCMS. Anecdotal evidence suggests that CCMS applications are not ‘processed/seen’ by LAA decision-makers until at least two to three hours after the application is submitted. This leaves open the question of what providers are to do where emergency funding is required for very urgent situations such as for out-of-hours applications. We understand some providers have reached individual arrangements to allow these cases to be considered immediately and it is to be hoped that the LAA makes this widely available.
Accommodation for asylum-seekers
11.21Legal Help is available to individuals who apply for accommodation from the Home Office under the Immigration Act 1996 s4 (for destitute failed asylum-seekers) and s95 (those with on-going asylum claims or failed asylum-seekers with children under 18). This can include advice on making an application, challenging the suitability of the offered accommodation (including location and type), and drafting letters before claim under the judicial review Pre-Action Protocol for delays in processing applications or failure to provide appropriate accommodation. Assistance can also be provided to draft a notice of appeal and appeal submissions to the First-tier Tribunal (Asylum Support). However, legal aid is not available for representation at the tribunal itself.
11.22Legal Help is not available under the housing category to individuals who apply for subsistence-only support under Immigration Act 1996 s98. However, where the Home Office makes an unlawful decision advice and assistance may be provided under the public law category.
11.23Providers do not have delegated functions to grant emergency funding for judicial review asylum support accommodation cases.
Unlawful eviction
11.24Legal aid is available for unlawful eviction claims.
18LASPO Sch 1 Pt 1 para 33. In most cases, the eviction will have happened and so an emergency grant of legal aid using delegated functions will be appropriate (unless the client is simply seeking damages, not reinstatement). However, a ‘reasonably alleged’ threat of unlawful eviction will be in scope,
19FAQ 84, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. including by way of withdrawal of services,
20FAQ 105, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. and in such a case Legal Help to advise and issue a warning letter may be more appropriate. The merits test for legal representation is:
21Civil Legal Aid (Merits Criteria) Regulations 2013 reg 63. Note that the prospects of success criterion is contained in regulation 43, which was amended by Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2(4) to allow for grants in the borderline and marginal, but not poor, categories.•the standard criteria are met (see para 5.92 above);
•the proportionality test is met (see para 5.104 above);
•prospects of success are:
•moderate or better; or
•borderline or marginal, and the case is of significant wider public interest or of overwhelming importance to the individual;
•the landlord or other person responsible for the matter complained of has been notified of the complaint (except where this is impracticable) and, where notice has been given, has had a reasonable opportunity to resolve the matter.
11.25Where a claim is primarily for damages rather than reinstatement, it is still in scope, but you will need to explain on the legal aid application why a conditional fee agreement is not appropriate. The Lord Chancellor’s Guidance suggests a conditional fee agreement (CFA) will be considered suitable – and so legal aid refused – if:
22Lord Chancellor’s Guidance on Civil Legal Aid para 7.17.•prospects of success are at least 60 per cent;
•the opponent is considered able to meet any costs and damages awarded;
•after the event insurance can be obtained.
•where you are relying on the non-availability of ate (after the event) insurance, you will be expected to provide evidence of having tried and failed to obtain it. (See paras 5.96–5.97 for more information.)
11.26The Part 2
23LASPO Sch 1 Pt 2. exclusions of assault, battery and false imprisonment claims, trespass to goods and trespass to land, damage to property and breach of statutory duty do not apply to claims for unlawful eviction, so all may be pleaded and claimed for.
24LASPO Sch 1 Pt 1 para 33(7).Housing disrepair
11.27For legal aid purposes, disrepair cases can be put into two separate categories, each with their own distinct rules.
Freestanding disrepair claims
11.28Disrepair claims are in scope, but only in limited circumstances. LASPO Sch 1 Pt 1 para 35 says:
(1)Civil legal services provided to an individual in relation to the removal or reduction of a serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family where–
(a)the risk arises from a deficiency in the individual’s home,
(b)the individual’s home is rented or leased from another person, and
(c)the services are provided with a view to securing that the other person makes arrangements to remove or reduce the risk.
(2)Sub-paragraph (1) is subject to–
(a)the exclusions in Part 2 of this Schedule, with the exception of paragraphs 6 and 8 of that Part, and
(b)the exclusion in Part 3 of this Schedule.
(3)For the purposes of this paragraph–
(a)a child is a relevant member of an individual’s family if the individual is the child’s parent or has parental responsibility for the child;
(b)an adult (‘A’) is a relevant member of an individual’s family if–
(i)they are relatives (whether of the full blood or half blood or by marriage or civil partnership) or cohabitants, and
(ii)the individual’s home is also A’s home.
(4)In this paragraph–
‘adult’ means a person aged 18 or over;
‘building’ includes part of a building;
‘child’ means a person under the age of 18;
‘cohabitant’ has the same meaning as in Part 4 of the Family Law Act 1996 (see section 62(1) of that Act);
‘deficiency’ means any deficiency, whether arising as a result of the construction of a building, an absence of maintenance or repair, or otherwise;
‘harm’ includes temporary harm;
‘health’ includes mental health;
‘home’, in relation to an individual, means the house, caravan, houseboat or other vehicle or structure that is the individual’s only or main residence, together with any garden or ground usually occupied with it.
11.29Therefore, legal aid is only available to remove or reduce a serious risk of harm to the client or a member of his or her family. This means that it is available to force repairs to be done, but not to claim damages.
11.30In order to be eligible for legal aid, there must at least be a credible allegation that there is such a risk.
25Lord Chancellor’s Guidance on Civil Legal Aid para 12.6. Once that threshold is crossed, Legal Help will be available to investigate further, including by obtaining expert reports. If after investigation it transpires that there was no serious risk of harm, then legal aid should be withdrawn, though the costs of the investigation will be claimable.
11.31The costs of expert reports should be limited to the maximums set out in the remuneration regulations
26The current rates can be found in Civil Legal Aid (Remuneration) (Amendment) Regulations 2013 Sch 2; following the 20% reduction in rates that took place in December 2013, Civil Legal Aid (Remuneration) Regulations 2013 Sch 5 is no longer current for cases started after that date. and if they are, you cannot apply for prior authority. However, if you need to go above those levels, you can apply for prior authority to do so if working under a certificate. There is no way of applying for prior authority in Legal Help cases, and so you should make a note on the file explaining why you believe the exceptional circumstances criteria are met.
27FAQ 86, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. The criteria are that the complexity of the material is such that an expert with a high level of seniority is required, or the material is so specialised and unusual that only very few experts are available.
28Civil Legal Aid (Remuneration) Regulations 2013 Sch 5 para 2. These criteria are unlikely to be met in most housing disrepair cases.
11.32Any expert instructed should generally be a joint expert in accordance with the Housing Disrepair Pre-Action Protocol,
29Lord Chancellor’s Guidance on Civil Legal Aid para 12.7. though additional medical evidence may be necessary to show that there is a serious risk of harm in the particular client’s circumstances. The LAA recognises that the risk may vary from individual to individual – the risk, for example, arising from damp is higher for a tenant with a respiratory illness than a tenant without one.
30Lord Chancellor’s Guidance on Civil Legal Aid para 12.9. There is, however, no specific evidential requirement to establish a serious risk of harm.
31FAQ 79, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. If the LAA does not agree that there is a serious risk, and so considers funding not justified, there is a right to request a review by the Director, but no right of appeal to an independent funding adjudicator.
32FAQ 80, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. Any further challenge would have to be by way of judicial review.
11.33The Lord Chancellor’s Guidance says that all relevant factors will be taken into account in determining whether there is a serious risk of harm, including the following (non-exhaustive) list of examples:
33Lord Chancellor’s Guidance on Civil Legal Aid para 12.10.•whether harm has already resulted;
•whether, as a result of the deficiency, an existing health condition has been exacerbated;
•whether the individual or any family members are in a high risk group, such as the elderly or very young children;
•whether the individual or any family member is vulnerable due to a disability, either because of risk to them, or damage to medical equipment;
•whether there are relevant environmental conditions – such as broken heating in winter;
•whether there are multiple deficiencies that could, taken cumulatively, be of greater seriousness;
•whether a single deficiency poses multiple risks;
•whether a deficiency affects shared rooms or areas;
•whether an instructed expert reports that future deterioration is likely;
•whether the local authority has identified hazards.
11.34Damages claims are out of the scope of LASPO. Where you claim both for enforcement of repairs and for damages, you should separate the work done on the file and ensure that you do not claim any work done in respect of the damages aspect on your legal aid bill.
11.35But you should also note that the LAA take the view that the statutory charge applies to the whole proceedings, not just the funded part.
34FAQ 81, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. So if you recover damages as part of a case for which you have legal aid, even if the damages part was out of scope and you have made no claim for work done in respect of it, your client will be required to pay the costs of the in-scope part of the case out of any damages recovered. See also para 5.98.
11.36It may therefore be in the client’s best interests to bring a claim where the damages element is more than purely nominal under a CFA. In any event, the LAA is likely to take the view that a claim involving a substantial damages element is likely to be suitable for a CFA, and so refuse a certificate on that basis. See paras 5.96–5.97 above for more on suitability for a CFA.
11.37Statutory nuisance proceedings under Environmental Protection Act 1990 s82 are in scope.
35FAQ 104, Civil Legal Aid Reform FAQs – no longer on the LAA website, but available at https://legalaidhandbook.files.wordpress.com/2013/04/legal-aid-reform-faq-v3.pdf. However, the combined effect of LASPO Sch 1 Pt 1 para 35(2)(b) and Pt 3 is to exclude the provision of advocacy services in the magistrates’ court.
11.38The merits test for disrepair claims is the same as for harassment claims, see para 11.42 below.
Disrepair counterclaims
11.39Disrepair counterclaims in possession proceedings are in scope, and unlike disrepair claims, counterclaims for damages are included.
36LASPO Sch 1 Pt 1 para 33(6)(a). The Part 2
37LASPO Sch 1 Pt 2. exclusions of assault, battery and false imprisonment claims, trespass to goods and trespass to land, damage to property and breach of statutory duty do not apply to counterclaims in possession proceedings, so all may be pleaded and claimed for.
38LASPO Sch 1 Pt 1 para 33(7).11.40However, if a tenant withholds rent in order to provoke possession proceedings, and then counterclaims for disrepair, legal aid is likely to be refused.
39Lord Chancellor’s Guidance on Civil Legal Aid para 7.4(c). This is because legal aid will only be granted if the Director is satisfied it would be reasonable to do so in light of the applicant’s conduct.
40Civil Legal Aid (Merits Criteria) Regulations 2013 reg 11(6). It appears that this provision has caused little difficulty in practice.
41See Jan Luba QC and Sara Stephens, ‘Sorting myths from facts over housing cases’ November 2014 Legal Action 10.Harassment
11.42Legal aid is available to victims of harassment to bring an application for an order under Protection from Harassment Act 1997 ss3 or 3A, and to defend against such an application. It will only be in the housing category where the injunction arises out of a housing issue, such as harassment by a landlord or arising out of a neighbour dispute. The merits test for legal representation is:
43Civil Legal Aid (Merits Criteria) Regulations 2013 reg 63. Note that the prospects of success criterion is contained in regulation 43, which was amended by Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 reg 2(4) to allow for grants in the borderline and marginal, but not poor, categories.•the standard criteria are met (see para 5.92 above);
•the proportionality test is met (see para 5.104 above);
•prospects of success are:
•moderate or better; or
•borderline or marginal, and the case is of significant wider public interest or of overwhelming importance to the individual; and
•the landlord or other person responsible for the matter complained of has been notified of the complaint (except where this is impracticable) and, where notice has been given, has had a reasonable opportunity to resolve the matter.
Legal Help will be available to advise prior to proceedings and to issue a warning letter.
Anti-social behaviour
11.43Injunctions under the Anti-social Behaviour, Crime and Policing Act 2014 are in scope but even where they arise out of a housing issue, are in the ‘miscellaneous’ category. Advice funded by Legal Help, and representation in the County Court or Youth Court by certificate, will be available in the usual way. Even though applications for injunctions against under 18s are dealt with in the Youth Court, they are still deemed to be civil cases for the purposes of legal aid. Where you have general authorisation to do so, you can grant an emergency certificate using delegated functions. If not, you can apply to the LAA in the usual way for a certificate. However, you can only grant Legal Help if you have sufficient ‘miscellaneous’ matter starts on your contract schedule.
11.44Breach proceedings, although dealt with in the County Court (for adults) are deemed by the LAA to fall within the crime category and thus the provisions of the Crime Contract. Civil practitioners whose firm does not have a crime contract can apply for an individual case contract to represent an existing individual client, though in practice the LAA is likely to expect referral to a crime firm instead. This does not apply to the defence of possession proceedings brought on the grounds of anti-social behaviour, which are in scope and in the housing category, and civil proceedings, in the same way as possession proceedings brought on any other grounds. However, where there are conjoined injunction and possession proceedings and within those proceedings an application for committal is made the provider should apply for a criminal Representation Order from the LAA to be covered for the work carried out on the breach proceedings.
11.45Funding of breach proceedings are paid by way of a fixed fee under the crime provisions (see chapter 14 for more details). Counsel is assigned automatically and so will be paid at hourly rates. There is no means test for breach proceedings.
11.46Applications for funding of breach proceedings is by way of CRM14 form online / through the Legal Aid Agency online portal.
Other housing work
11.47All other housing cases are outside the scope of legal aid. However, applications for exceptional funding can be made – see chapter 4.