Letter to the editor: Responding to Legal Action piece on JUSTICE Housing Disputes Service
I write to correct a number of points in Sue James’ piece on the JUSTICE report Solving housing disputes
in June 2020 Legal Action 15
(i) Much is made of the way lawyers currently achieve resolution through negotiation, as if that role was being displaced. As Andrea Coomber said in her piece: ‘Lawyers will be required to advise and negotiate with other prospective parties before deciding whether to refer a client to the HDS.’ If parties have lawyers, HDS will only come into the frame after they have failed to achieve a resolution without litigation.
(ii) There is no question of ‘Taking lawyers away from possession cases’. HDS determinations are to be appealable as of right, whether on facts, law or proposed remedies, for which legal aid would be available. This affords a broader right than now before the current higher tier (Circuit or Upper Tribunal) based on a full investigation of all participants’ circumstances and report on them by HDS, far wider than the court or tribunal can carry out for itself or than a lawyer could do on legal aid. Nor is any basis identified for the suggestion that pioneering cases would not be taken forward because of HDS.
(iii) The piece implies (through the quotations it adopts) that the report was asserting that housing law is conducted antagonistically: antagonism is not referred to in the report itself, only in the HLPA dissent.
(iv) HDS requires a thriving housing law service. The report makes clear that there needs to be sufficient funding to attract lawyers, to answer Sue James’ proposition that ‘The report makes no suggestion as to how these lawyers will magically appear’. It is central to the report that legal aid rates must be at an economically sustainable level for all activities covered by it including advice and negotiation, ie, not dependent on subsidy from litigation.
(v) The report recognises the possibilities of cherry-picking and under-funding but the fear cannot be a reason for failing to explore new solutions to what most are agreed is a system badly in need of change. JUSTICE is committed to seeking to prevent any such abuse. Moreover, the proposal is for HDS to be funded in full by subscription from housing providers, as the report demonstrates that it clearly can be. That is why - notwithstanding my view in 2018 (by which I stand) - I believe things would be different for HDS.
One final comment: JUSTICE is an access to justice charity. There is no mention in Sue James’ piece of the important issue of access, which affects a huge number of people, whether the causes for lack of it are housing lawyer deserts, extremely low legal aid eligibility levels, alienation or unfamiliarity. The day-to-day experience of legal aid lawyers representing those who find someone to help is important but is not the only perspective; the position of those who do not is a major concern and was a significant part of the report. As a mandatory stage, HDS would secure participation, support, advice and resolution, by and for everyone, including reference to external or panel lawyers at various stages and representation if a matter proceeds to court or tribunal.
Andrew Arden QC