The warning comes following the introduction of changes to legal aid payments in anti-social behaviour injunction cases, in anticipation of the new injunction regime under Part I of the Anti-Social Behaviour Crime and Policing Act (ASBCPA) 2014. There are concerns about access to specialist housing advice for those accused of breach of injunctions in housing-related cases, and the potential consequences this can have for loss of home.

Civil practitioners will be unable to carry out breach of housing-related injunction work under a housing legal aid contract. In response to the consultation, the MoJ has decided that though the proceedings can take place in the county court, because the criminal standard of proof applies, they should be classified as criminal work and be carried out under a criminal legal aid contract only. The MoJ says that there is discretion for the Legal Aid Agency to award legal aid to civil practitioners in individual cases, but there is no guidance, as yet, for applying for such individual contracts.

Representation for breach of injunctions inevitably requires urgent work, but there is likely to be a delay in processing individual applications, which will lead to practitioners having to undertake large amounts of work unfunded.

Finding a breach of an injunction under part 1 of ASBCPA triggers a new mandatory ground for possession, available to landlords under part 5 of the act. The MoJ acknowledges that mandatory grounds of possession may follow breach of injunction proceedings, but says that civil legal aid will remain available for the resultant possession proceedings. However, if individuals don’t receive specialist housing advice early, they may not understand that their response to the breach allegations could jeopardise their family home. By the time possession proceedings are issued, it may be too late: the ground for possession will be made out.

This change in funding may not be as successful as the MoJ hopes. It could result in duplication of work due to double handling by housing and criminal providers, meaning that the overall cost to the legal aid fund may increase. This is unless a straightforward and timely procedure can be implemented for civil practitioners to be granted legal aid in these cases.