DIY litigation will end in tears

As a specialist social housing lawyer acting for a large number of RSLs across the South-east, it would, perhaps, be a little unsurprising if I were to be unconcerned by the Home Office’s plans to replace antisocial behaviour lawyers with housing staff.

The clear driver for the proposals is the increase in legislation targeted particularly at RSLs to tackle antisocial behaviour but without an equivalent increase in funding or resources to pay for the extra workload. And as organisations become more proficient at tackling antisocial tenants, so the demand for action to be taken increases, as do the costs, and so on. But the answer is not to turn housing staff into lawyers. That is akin to the government attempting to save the costs of running the NHS by sending all UK citizens an “info” pack and enrolling us on week-long medical training courses.

No one should dispute the ability of people from all disciplines and walks of life to “DIY” in other areas. However, there are a number of costs to “DIY” actions which are all too often ignored, so headlines such as “we obtained an ASBO for just the issue fee of £150” are not only incorrect, they can be misleading and dangerous. Whereas the “out-of-pocket” cost may have been £150, what about the time cost of the staff involved in that action? And what is the opportunity cost of dedicating staff to that work – what other essential and core housing management work is not being undertaken and at what cost? In addition, given the level of skill and expertise required in even the most apparently simple and straightforward litigation, what are the hidden costs of the increased risk of failure? There are likely to be the organisation’s own wasted costs, plus the costs of the other side, coupled with the knock-on effect for the residents of failing to deal with the case.

DIY is fine for some things, but let’s not get carried away with seeing it as a cure-all. If one takes the argument further, should housing management staff go on intensive plumbing and heating courses and undertake all disrepair call-outs themselves? If the answer to this is a resounding “no”, then why add to the strains and stresses of an already difficult and stressful job in housing management by seeking to turn housing staff into litigation lawyers? These proposals have all the hallmarks of a knee-jerk reaction which will end in tears, considerable cost and a reversal in years to come.

The real answer is to tackle and address the rising costs of litigation. This is where effort should be concentrated if the problem is to be resolved long term rather than “quick-fixed” only to fall down again in the near future. So how do you address the rising costs of litigation? I list below a number of obvious ways, but I am sure there are many more:

• Challenge the Legal Services Commission’s guidelines for granting public funding and obtain clear guidelines as to when and how this should be granted
• Make costs orders against defendant tenants enforceable irrespective of public funding, even if this is only possible over a lengthy period of time by benefit deduction
• Review the costs and benefits of establishing a dedicated housing court to speed up and so reduce the costs of housing cases
• Challenge lawyers over their fees and fee scales. To an extent, lawyers in this field may be guilty of their own downfall if they are foolish enough to exploit the increase in work in antisocial behaviour without providing real value for money. The legal fees charged in a number of cases reported in Housing Today and other social housing press are enough to bring tears to your eyes (even speaking as a lawyer) and it is then little wonder that RSLs believe the answer lies in DIY. But this is not the case. There is no reason why fees should be as high as they are and someone, somewhere, is not being honest or up-front. Demand better and best value from your lawyers rather than tipping your housing management staff over the edge and ultimately sending your litigation costs through the roof.

Tim Crook, Housing Law Services, St Leonards-on-Sea, East Sussex