JUSTICE, the law reform and human rights charity, has today (5 March 2020) published a report on reforming the law around housing disputes. Solving housing disputes argues for the establishment of ‘an entirely new and distinct model for dispute resolution’, to be called the Housing Disputes Service (HDS) (page 1). The proposals, though, have been met with opposition from some of the lawyers who were members of the committee that drafted the report.

Andrew Arden QC chaired the working party that put together the report. He is the former head of a chambers that bore his name and is often referred to as the ‘godfather’ of housing law. In a press release, Arden acknowledged that the suggested pilot of the new service is the ‘headline point’ of the report. He believes ‘passionately that only something like the HDS can actually alleviate the strain of disputes with their landlords for tenants’ (‘JUSTICE launches “Solving housing disputes” report’, JUSTICE press release, 5 March 2020, page 2).

The report acknowledges that the chance of obtaining legal advice to assist people dealing with housing and related problems ‘has been greatly attenuated by the cuts to civil legal aid’ made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) (page 1), and that funding cuts have led to advice deserts ‘across huge swathes of the country’, leaving many people with ‘nowhere to go when facing a housing problem’ (para 1.4, page 6). It also argues that the current system of resolving disputes is failing and ‘preventing a coherent understanding of structural problems within housing’ (para 2.7, page 11). The HDS would be funded by landlords and take housing disputes out of the courts system.

A second part of the report sets out recommendations to improve the current system. These include access to early advice and a single point of entry to the courts system for resolving housing disputes (pages 48–89).

Annexed to the main document is a dissenting report written by members of the working party who oppose the HDS (page 126). They believe that the lack of access to justice and other problems in the current system ‘arise almost entirely from the under-resourcing of the court system and legal aid as well as the shortage of social housing and the well-publicised problems with the benefits system’, and that the new HDS would ‘inherit these problems, not fix them’ (para 13, page 130).

The Housing Law Practitioners Association (HLPA) consulted its members on the HDS plan. Incoming co-chair of HLPA, Simon Mullings, told Legal Action it was clear from the feedback that the organisation received that ‘we could not support the proposals’. Mullings, who takes over as co-chair next month, stressed that the HLPA members on the JUSTICE working party ‘engaged openly and constructively’ with the process that led to the report.

Sue James, a solicitor at Hammersmith and Fulham Law Centre, said the HDS ‘would have a devastating effect on tenants’ rights and their ability to access justice’. She believes ‘the proposals are out of touch with the needs of tenants facing housing issues’ and that the JUSTICE committee ‘neglected to include the involvement of front-line housing lawyers, who are overwhelmingly opposed to the scheme’.

Jodie Blackstock, JUSTICE’s legal director, told Legal Action that while a minority of tenant lawyers on the committee disagree with the HDS ‘even on a pilot basis’, the majority believe that this new approach to resolving housing problems ‘is at least worth piloting on a limited basis’. JUSTICE has recommended that any pilot should be carefully evaluated against outcomes related to access to justice and Blackstock suggests this could ideally take place in part ‘in a location where housing advice has long disappeared, where a pilot is an opportunity to reintroduce housing advice’.

Opponents of the HDS believe that the system is based on the assumption that ‘legal aid is not coming back’ (para 14, page 130). James thinks it ‘will result in more people being excluded from advice and representation’. She considers the JUSTICE proposals ‘worse than the introduction of LASPO, and that really does take some beating’. Blackstock argues that the HDS is predicated on the basis that the MoJ ‘urgently address the need for sustainable funding for the legal aid and advice sector’.