The man has lived in his rural cottage since he was born, but his local authority wants possession to redevelop the area. To complicate matters, question marks hang over whether the house is his or his cousin's and how much of the surrounding land belongs to the property. "It was a huge relief for him when I said I'd take on the case," says Conway. "If I hadn't, he'd be homeless now. The subject is complex and volatile and not everyone wants to take on something like that." The case has yet to be resolved.
Indeed, the man from Wales was lucky to find Conway. When the solicitor started practising 28 years ago, there were 12 housing legal aid lawyers in Kensington and Chelsea; now there are just two. The situation is the same elsewhere in the country, as solicitors desert legal aid in droves, put off by uncompetitive pay rates, hours of unpaid work and cumbersome red tape. Last week, a Law Society survey indicated that the problem is only going to get worse, as heavily indebted students gravitate towards more lucrative parts of the profession. Out of 2123 law students questioned, only 17% were considering doing legal aid work, and this number dwindled as they progressed in their jobs, to just 7% of 1522 trainee solicitors.
"For most firms, legal aid is just not sufficiently cost-effective," says Richard Miller, director of campaigning trade body the Legal Aid Practitioners' Group. "Firms are dropping out of legal aid work and there are no new lawyers or other services to take up the slack." Miller says that although the number of solicitors with practising certificates has grown by more than half in the past 10 years from 57,167 to 86,603, the number of firms doing legal aid has dropped from more than 11,000 to 4300.
There are 400 not-for-profit organisations that provide legal aid advice, Citizens Advice, law centres and Shelter among them. But they lack the resources to plug the gap in demand. In a survey last month by Citizens Advice of 200 of its offices, four in 10 said their area was a legal aid "advice desert" and six out of 10 said it was hard to find a legal aid housing lawyer.
Legal aid, a central plank of the welfare state when it was launched in 1948, is clearly under threat. This means swathes of the population could be left with no right to challenge court decisions they believe unfair, from loss of benefits to wrongful eviction.
Emergency service
To get civil legal aid – covering housing, family law, mental health, education, asylum, benefits and employment – a client must be means-tested and the case judged on its likelihood of success. Roughly speaking, a client's disposable capital must not be more than £3000 and their monthly disposable income must not exceed £600.
Before the 1999 Access to Justice Act, the system was simple. Any solicitor could do legal aid with no limit on the number of cases or in what field of law they were brought.
But there was concern that the system was not subject to any quality or cost control and was demand-led. The 1999 law scrapped legal aid for accident victims, replacing it with "no-win, no-fee" deals and created the Legal Services Commission to replace the legal aid board and impose more control. Now, firms that want to do legal aid work must first pass the LSC's quality mark and then apply for annual contracts specifying the number of cases they take on. The idea was to drive down the legal aid bill and improve services.
Spending on civil legal aid has indeed fallen – from £848m in 1998/9 to £734m in 2001/2 – but experts say the reforms are a bureaucratic nightmare that discourages lawyers from legal aid work. This certainly seems to be backed up by the figures: in the first year of the new system, 743 firms of solicitors offered housing law legal aid and 70,294 cases were begun, but by October 2003 the number of firms was 496 and the figure for cases started in the year ending this March will be 53,680, according to the Legal Aid Practitioners' Group. "People are spending time filling in forms rather than with clients," says James Sandbach, social policy officer at Citizens Advice. "The LSC is trying to micro-manage these services and it's a waste of resources."
On top of the red tape headache is the fact that legal aid is not as well paid as other law work. Solicitors, regardless of experience, charge around £52 an hour for legal aid work. In private litigation, even a trainee can charge a minimum £90 an hour and where more senior lawyers ask at least £150 an hour.
"If you work in legal aid, you're not in the career to make money," says solicitor Paul Ridge of London firm Bindmans. Ridge is part of a three-strong team that gets 50-60 enquiries from new clients every week, although their LSC contract allows them to take on only 120 a year. "You've got to have commitment; the bureaucracy increases, the hours are long and there'll be a reduction in salary," says Ridge.
Cate Lynch, a housing support worker at Peterborough Citizens Advice bureau, knows well the effect the lack of legal aid is having on those who most need help. Of 200 housing cases Lynch has seen in the past six months, from possessions to disrepair, just one has been taken up by a legal aid solicitor.
The human cost of the crisis is simple: more possessions and more people forced to live in bad-quality housing
Paul Ridge, legal aid solicitor
A lack of resources and expertise means that the help Citizens Advice can offer is quite restricted – it cannot go to court and get an injunction, for example. Meanwhile, research commissioned by the LSC in 2000 revealed that 1 million legal problems go unsolved each year because people do not know their rights or how to find help. "We've seen people with possession notices from private landlords written on napkins, unaware that this is wrong," says Lynch.
Just before Christmas, a homeless man in his 50s came to see Lynch. Blind and suffering from epilepsy, he had been evicted from temporary accommodation in a neighbouring council for alleged nuisance behaviour, which he denied, and had slept rough for two nights before finding the Citizens Advice office. Although this constituted an emergency case, no local solicitors were able to take it on, so Lynch tried to contact the neighbouring council herself to find out more.
"He came in the late afternoon, so by the time we rang the council we couldn't get him placed," says Lynch. "We had to ask him to come back the next day, it was heartbreaking telling him we couldn't do anything.
"I found him wandering the streets on Christmas Eve because he couldn't find our offices. By then, there were no solicitors available and we didn't have the resources to deal with it. Finally, we got in touch with Shelter and one of its solicitors agreed to ring the borough, which finally took him back in at the 11th hour. It was awful, he was helpless, totally distraught."
What can be done?
Paul Ridge at Bindmans believes that if anything is to change, the government must stop relying so much on solicitors to undertake legal aid work. "We need to look at alternative means of delivery, such as more from the not-for-profit sector."
Sally Keeble, MP for Northampton North, who has lobbied on the issue, says that clearer advice on rights would help: "You can't force lawyers to do legal aid work, so you have to make sure people are referred properly – quite often people will go straight to a lawyer when they don't need to." Councils, says Keeble, could do more to promote law centres or advice centres.
The Law Society, the professional body for solicitors, believes a GP-like contracting system could help to stem the exodus into better-paid private work. The new contracts for GPs, due to be introduced later this year, could operate just as well for solicitors, who would be barred from doing private work except as set out in the contract, and would know their budgets in advance.
A spokesman for the LSC admits that there are "pockets of unmet need" for legal services. "For some problems – those involving welfare benefits and debt, for example – we believe that services are generally better delivered by the not-for-profit sector," he says. "For others, where there is insufficient need to justify the funding of a local service, there are often well-established ways of accessing legal services in neighbouring areas. This is not a phenomenon peculiar to legal services; it applies to shopping, banking, health services and many other aspects of modern life."
A pilot scheme to be launched later this year will reward high-performing legal aid providers with "lighter touch audits" and grants from the LSC will help train 300 legal aid solicitors in the next two years. These measures, the LSC spokesman says, will ease the problem.
It is to be hoped that they will. If left unchecked, the gaps in legal aid provision will affect more than just the housing sector.
Nick Billingham, a partner at Devonshires Solicitors in London, predicts the system will go the way of personal injury claims if left unaddressed: "In civil cases, it is almost inevitable that we end up with a complete 'no-win,no-fee' system like in the USA where, in most cases, no costs are awarded by the courts and the lawyers take their cut out of damages recovered."
A shrinking legal aid sector will also give unscrupulous landlords free reign to maltreat the most vulnerable tenants in social housing, says solicitor Paul Ridge: "The human cost in housing terms is simple. There will be more possessions and more people forced to live in bad quality housing."
Source
Housing Today
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