The consultation on the Housing Possession Court Duty Scheme has recently closed. Here, Simon Mullings analyses a key proposal to offer early legal advice before the possession hearing.
The Ministry of Justice (MoJ) consultation on the future of the Housing Possession Court Duty Scheme (HPCDS) – Housing legal aid: the way forward
– closed for responses on 20 January. The consultation included some broadly welcome proposals, which in fact are already in force, such as fees to cover sessions at court where duty advisers do not see any clients, and the ability to open a legal help advice and assistance file for follow-up work to duty advice at court without forgoing the duty fee.
However, the eye-catching proposal in the consultation is a scheme named HLPAS (Housing Loss Prevention Advice Service). The idea is that HLPAS will comprise the current duty scheme but with early legal advice available before the possession hearing. This will be non-means-tested, free legal advice on the issues that are relevant to the possession proceedings. Housing lawyers will immediately apprehend that this is most often going to be welfare benefits and/or debt advice, which has, since the 2013 LASPO1Legal Aid, Sentencing and Punishment of Offenders Act 2012.
reforms, been out of scope for mainstream face-to-face advice and assistance. Add that to the fact that this is not means-tested and so universally available, and it will be understood that this is an important proposal.
The MoJ has for some time now been keen to publicise a new-found enthusiasm for early legal advice. It does always seem to be the case that you don’t know what you’ve got ’til it’s gone. And therein lies the challenge that will have to be met if this or a similar scheme is to work. Many organisations that deliver HPCDS, or might be best placed to consider delivering HLPAS in the future, would have had skills and expertise in benefits and debt law and practice prior to LASPO. However, as was made clear to ministers and civil servants at the time, taking benefits and debt out of scope would remove that very complex skill set from the legal aid sector and once gone it would be very difficult to bring back. Nine years on, that is precisely the situation that we face when considering the HLPAS proposal.
Most organisations, already ravaged by the effects of LASPO and regressing rates of pay, will not be able to afford to re-grow a welfare benefits and debt capability. Remuneration of the early advice is by way of a fixed fee of £157 with no escape, which for potentially open-ended work is unlikely to be sustainable along with the development and set-up costs.
At the same time, it is clear to us on the front line of duty work that to be effective the early advice must be delivered by those who intimately understand: (i) the housing possession first hearing where court duty is delivered; and (ii) the law and process if litigation ensues beyond the first hearing. HLPAS, as with any early advice in any area of law, will only work as part of an integrated service – call it an ecosystem – that runs holistically from notification of proceedings through to any and all levels of litigation required to resolve the issues. Consequently, it will not be effective if hived off to other agencies, where, in any event, it is not thought there is capacity to deal with that work.
HLPAS shows great promise in terms of what it can offer to those facing possession proceedings but the idea needs significant development (and investment in the sector by the successors of those who trashed it in the first place) if we are to take up the paving and plant trees in the parking lot again.