Authors:Sue James
Last updated:2023-10-26
Give and take – recent developments, housing law and LAG
Marc Bloomfield
Description: LAG 50 Years
Legal Action’s prolific ‘Housing: recent developments’ authors give Sue James their reflections on decades of helping lawyers to help their clients.
Description: 50th anniversary housing covers
Top row L–R: Shelter; Maggie Murray/Format. Bottom row L–R: Philip Wolmuth/; Steve Hynes; Pogonici/iStock.
It’s 40 years since HHJ Jan Luba QC wrote his first article for Legal Action, or the LAG Bulletin as it was then known. ‘Tenants’ rights to housing repairs’ by Jan Luba, barrister, Stockwell and Clapham Law Centre, was the first of a series of articles reviewing the rights of tenants to secure repairs. Since then, as regular readers will know, he has gone on to be, almost certainly, the most prolific contributor on housing law in the magazine – although the original idea of the then quarterly column, ‘Recent developments in housing law’, came from Nic Madge while they were having a drink one night back in 1985 on the Caledonian Road. They then went on to write together for the next 33 years until Nic retired from the bench in 2018.
As it’s also LAG’s 50th anniversary month, I wanted to get some reflections from Jan and Nic on how their paths of housing law and LAG have interwoven over the past half century. I start with Jan and we arrange to meet at Court 61 of the County Court at Central London at 4.30 pm, but I’m a little early (mainly to ensure that I make it through security before the court closes), so I wait outside the courtroom until it’s time. I smile as I sit and pull out my notes, thinking of the advocates who would usually be here waiting for HHJ Luba QC, reading their papers, rehearsing their arguments – more than likely with a certain amount of trepidation, if not sheer terror – whereas I just have the offer of some light refreshments to look forward to.
Jan’s clerk seems surprised as I knock on the locked court door at 4.30 pm. I explain I have a meeting with Judge Luba. He disappears behind the courtroom to check my story and returns to take me through to Jan’s chambers, where he is working at his desk. Jan seems genuinely pleased to see me and sets about organising the refreshments. Once ready, I ask him what reflections he has of his LAG journey:
My first thought, especially looking back at the material around the inception of LAG, is that I was born 10 years too late. If I had been born 10 years earlier, I like to think I would’ve been at the inception meeting of the group and I would’ve been involved in the early stages of the organisation and made a real contribution in that way. And I also would’ve been a decade ahead of, what I perceive to be, the effective end of legal aid with LASPO.1Legal Aid, Sentencing and Punishment of Offenders Act 2012. So, I would’ve had another decade of what I think future generations will look back on as the glory days of legal services provision in the United Kingdom, particularly legal aid work.
So, my first reflection is, in looking at this material, I am a 40-year contributor but the real glory goes to those, and rightly so, who started all of this 50 years ago. And if I have a first reflection, I would’ve loved to have been part of that club, because it would have seen my working life out in what I consider to be, for me, the dream period.
Being born 10 years too late, as Jan puts it, meant that he, regrettably, wasn’t in the company of Andrew Arden QC, David Watkinson, Dawn Oliver and many more exceptional people who were writing for LAG before his time.
Jan describes this as a time when everyone was doing whatever they could for the cause. ‘It felt like an entirely different era in which your personal politics, in the sense of your aspiration for social equality, could be infused into not only what you did in your own time, but also what you did in your work time.’ He has fond memories of leaving his Law Centre office and visiting 28A Highgate, which was then LAG’s base, and finding that they looked exactly the same. He tells me Susan Marsden-Smedley, Ole Hansen and Jenny Levin – all former directors of LAG – ‘were driving a movement’ of which his Law Centre was just a small part. ‘LAG had been carefully promoting the development of Law Centres almost on a “how to” basis. So, although over the subsequent five or six years it became how to do the law, it started, as you can see from the early magazines, as how to run a legal aid practice, an advice centre or a Law Centre. So, the guidance was there.’
The inception of LAG was at a time of social and political change, and although Jan wasn’t there at the start, he has certainly stayed for the duration (he has every copy of the magazine apart from issue 2, which I promise to copy for him). He refills my cup and encourages me to eat more, then continues:
My second reflection is linked to the first, and that is how lucky I was to be wanting to do this work at what one would call the upward incline of the curve. Whereas people now of the age at which I started are looking at the bottom end of the curve and wondering, ‘Goodness me, what is the future and how can this possibly be viable?’ And so, although I would’ve preferred, first reflection, a decade earlier, my second reflection is how lucky I was to be coming into it when I came into it.
I was interviewed by Nic for my job at Bindmans in 1995, just as he was about to become a full-time judge. I remember being terrified I wouldn’t know any law and then feeling like I had won the lottery when I was offered the job. We never worked together, but I did get to appear in front of him at West London County Court. I remember he used to type his own orders and give them to you on the day – it felt revolutionary. I ask Nic for his reflections on his LAG journey, which he sends across:
‘Empowerment’ was one of the watchwords of the day as well as the catchphrase, ‘justice for all’. Sharing knowledge was why I first submitted a note on a housing case for publication in the ‘grey pages’ of the LAG magazine in March 1981. That note was then followed by articles on duty solicitor schemes, Rent Act evasion, suspended possession orders, damages for disrepair and breach of covenant for quiet enjoyment.
But when did housing law become a ‘thing’? Nic says:
Housing has always been a political issue. For most housing lawyers in the intensely political times of the late 1970s and 1980s, especially those working in Law Centres, improving the housing conditions of ‘disadvantaged’ people was part of the wider political struggle. Criminal lawyers were defending striking miners charged with public order offences and women arrested at Greenham Common. Employment lawyers were supporting trade unions and the striking Grunwick workers, and promoting equal pay. We housing lawyers were opposing the right to buy council housing; working with tenants’ associations; providing aid to the squatters’ movement; setting up the first duty solicitors’ schemes on court possession days; forcing local authorities to use their enforcement powers to improve housing conditions in the private sector; and pursuing test case strategies, aiming to change law and practice by winning targeted claims. Successfully defending possession claims, winning disrepair claims and forcing local authorities to house homeless people were all crucial, but to a young, enthusiastic, optimistic band of housing solicitors and barristers, our legal work was just part of a wider political campaign.
Sharing knowledge and empowering people was at the heart of LAG’s origins and reflected by these amazing lawyers. A lovely example of this arises in Nic’s account of how the Stent v Monmouth case was reported, and it still brings a smile to my face (and so I am going to tell it again) as it embodies the passion and the commitment of housing lawyers. On holiday in Wales, Nic popped into the local newsagent to find ‘Tenant wins court case’ emblazoned across the Abergavenny Chronicle. Nic bought a copy of the paper and Jan went to the Court of Appeal Library, found the case (as it wasn’t reported), wrote it out in full (there being no photocopiers in the library in 1987) and then wrote it up for September’s Legal Action for everyone else to share.
Description: Jan Luba Sue James and Nic Madge 2
Jan Luba QC, Sue James and Nic Madge in 2017
I could listen to Jan chat all evening, but that is probably how I feel about most housing lawyers (I know, I need to get out more!). Jan tells me he has been very fortunate: ‘I have been able to take from LAG a huge amount of learning and, as it were, to reciprocate by contributing something back for 40 years. So, I suppose my third reflection is what an excellent process of give and take. I took so much from the magazine, from people writing about housing in the early years, and now here I am giving something back.’
Mining the archives has made me think how we need to do something more, something really special with them. I mention this to Jan, who tells me that when he writes ‘the Book’ (it was Jan’s idea for Defending possession proceedings back in the pub on the Caledonian Road that night with Nic), his primary source is the law in the magazine. ‘I’m forever saying, “Oh, I had forgotten all about that”, “Goodness, that’s a really interesting example” and so on. You are right about that, there is a real danger of that all being, in a sense, lost.’
‘Passing history,’ he continues, ‘without being retained and reused, we face the real danger of somebody in 50 years’ time finding something in an old edition of Legal Action magazine and reintroducing it into the law, rather in the way that David Ormandy rediscovered a cohort of a standard of housing conditions that no one had touched for years. People started to use it and we had a barrage of prosecutions using s99 of the Public Health Act 1936, which had origins in public law going back to the 1880s.’
We also need to document the stories, as they capture a slice of our social and political history (that is why I started my ‘At the bar’ series) and we can learn much from this which can shape the future. It would be lovely to encourage more new writers to Legal Action. Sam Madge-Wyld tells me that he has learnt a great deal from working with Jan on recent developments, which he took over writing upon Nic’s retirement. It gets me thinking that it would be great to start a writing academy at LAG – encouraging new and diverse voices.
‘Lovely chatting. It makes me feel young again,’ Jan tells me as we are packing up our things to leave. I have kept him far too long and we have to rush for him to catch his train. We continue to talk as he shows me out via the back of the court building used for judges, walking at a brisk pace to Temple tube station. Jan is going east and I am going west. We rush our goodbyes as we hear a train arrive. As I jump on mine, I reflect on how privileged I am to have had the opportunity to listen to these stories. They changed the legal landscape by creating what we now know as housing law. They influenced my history and gave me – and (I know) hundreds of other lawyers, caseworkers and campaigners – a passion and a family to belong to, a family that now needs to nurture new members to learn the law, to use the law and, if necessary, to change the law for those most in need.
Andrew Arden QC commented: Recent Developments has been required reading for all housing lawyers since it began; it is a fount of important information, accessibly delivered, which Jan Luba and Nic Madge can take the greatest of pride in having sustained for all these decades. They have both - but because of his longer period in practice and as an advocate, Jan in particular - made an immeasurable contribution to housing law, a subject I am as glad to share with them as I am for our long friendships.
Twitter quizzes Jan Luba QC
Mark Prichard, social housing consultant
Assuming rationing of an open-ended housing duty will continue (eg, via qualifying criteria such as priority need) what would be the best way of making the statutory homelessness safety net in England both simpler to administer and more effective in alleviating homelessness?
That is an essay question!
Russell Conway, partner, OIiver Fisher Solicitors
Being a housing judge means you have to make tough decisions. Does he ever wake up at night worrying about the consequences of a possession order or a failed homelessness appeal?
Good question and I can answer that one.
There have been times in my life where I have done legal work where I couldn’t sleep and I did worry. And those were primarily concerning children. My pupil mistress, Tessa Moorhouse, specialised in childcare law, and yes, as part of my pupillage and shortly thereafter, I did childcare work where you didn’t know whether the child that had been returned to the parental home was going to live or die, you didn’t know what was going to happen if they were taken into care and you did have sleepless nights. In a sense. I am comforted by the fact that in housing work, the very worst that is going to happen is that my client is going to move, sorry, then my client, now my customer, is going to move from property A to property B, even if property B is some form of shelter provided by the local authority. I don’t lose sleep over it for that reason. If I was a social worker or a heart surgeon, I may toss and turn about the work I do, but I am applying pretty firmly established legal principles with known outcomes – it’s not quite so difficult.
Vicky Fewkes, supervising solicitor, Ealing Law Centre
Where has the jukebox gone?
If only I knew!
Paul Heron, senior solicitor, Public Interest Law Centre
Which football team does he support?
What makes you think I know what football is?
Does he prefer Everton FC or Liverpool?
I prefer caramel.
Simon Mullings, senior caseworker, Edwards Duthie Shamash
Dear judge [makes him laugh], the Housing Law Reports covering your years at the bar are liberally sprinkled with praise for your fluent and elegant submissions. At one point it seemed that there must have been a template judgment document for social welfare cases in the Court of Appeal which included the phrase: ‘Mr Luba QC, with his customary erudition/fluency, argued …’, so that LJs were spared the trouble of writing it themselves. I don’t think there is anyone who has had the privilege of sitting behind you in court who would or could disagree.
(a)Did you consciously develop your style of advocacy and if so, how? And,
(b)I wonder if you are or are not of the view that in advocacy form follows content, so that if an argument can be constructed elegantly, it has a good chance of being ‘right’?
Right. Let me try and answer that in several ways:
Because advocates are rarely in a position to peer review each other, you don’t know if you are doing it right or wrong. At my leaving party at Garden Court, a very senior judge kindly agreed to make a contribution to the speeches and said, ‘Jan was a very great advocate, if only he didn’t do such and such’ and mentioned a feature of my advocacy – but I was then leaving. If I had been told that 35 years earlier, my 35 years of advocacy might have been completely different. There is a good example of why peer review of your advocacy is so helpful.
Defending possession proceedings: the ‘bible’ of housing lawyers
As Defending possession proceedings enters its impressive ninth edition, and for the first time has two exceptional women on the team, I ask for some author reflections.
John Gallagher (who Jan thinks should be canonised)
When I became one of the contributors to Defending possession proceedings, I regarded it as a privilege to contribute to a book which I had relied on since it was first published in 1987, and I still feel like that. Without LAG and its stable of books, lawyers and advisers would have to depend on legal tomes which are not designed for the practitioner. I’ve always valued legal writing that makes complex ideas accessible to the less experienced reader while losing none of the rigorous detail which the active practitioner needs. It’s in the nature of possession proceedings that the outcome may render an individual or family homeless, but standard legal textbooks pay scant regard to that eventuality. As its title suggests, DPP unashamedly has a mission to keep people in their homes wherever possible, but we hope that it also serves its purpose of ensuring that possession cases are dealt with according to law.
At the risk of disclosing the secrets of the editorial process, I’m sure my co-writers would agree that the scariest stage of each new edition is when we submit our homework to Jan Luba QC for his comments. I’m convinced that Jan orders a new supply of red pens every five years for the purpose of expressing his opinion of our labours.
Ann Bevington
I have used Defending possession proceedings – the ‘bible’ of housing lawyers – since my days as a trainee solicitor. So being asked to join the author team, alongside Sarah Steinhardt, was a huge honour, if daunting. Working on the ninth edition brought home to me the breadth of knowledge which defendants’ advisers need and duty advisers across the country rely on. The experience has also given me a proper appreciation of the professionalism and commitment not just of the other authors but also of the book’s publisher, Esther Pilger, who does an amazing job as LAG’s publishing director.
Sam Madge-Wyld
It is an honour to have had a minor bit-part role in the 50 years of LAG’s housing coverage and an honour to have been asked to write with such titans of the game. The standard of writing and the attention to detail of Jan and Andrew is second to none. As a barrister, what is so great about LAG is the high quality of material; it is of equal standing to the more traditional text. Although it is pitched to a completely different audience, the standard of the analysis, the depth of knowledge, in my view, is just the same.
That’s the thing with Jan, he’s very much front, right and centre of housing. He puts a lot of cases on Bailii and gives people permission to appeal so guidance is given on things that are needed. He really is still shaping the day-to-day possession and homelessness law, but in a different way, from the bench.
I can’t leave without a shout-out to all the housing lawyers, caseworkers, campaigners, academics and environmental health officers who have contributed to the magazine, the books, the campaigns, the training and the policies, and worked on the front line over the past 50 years. We have a small staff team and can’t go through 50 years of archives to name you all – but you are all highly valued and appreciated. Thank you!
1     Legal Aid, Sentencing and Punishment of Offenders Act 2012. »