Published: 21 Dec 2018 by Ruth Ehrlich

Access to justice is a fundamental human right – but one that is increasingly difficult to exercise.

Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), thousands of people are unable to access legal advice for help with benefits and debt problems, or with other tenancy issues at an early stage – so much so that the number of new benefit cases opened under legal aid has dropped by 99% since 2013.

This means that small problems can quickly escalate, and people become unnecessarily at risk of losing their homes. If legal aid were readily available to help those people, homes would be saved and the pressure on public services when situations reach breaking point would be alleviated.

But in news as disappointing as it is predictable, the government has announced that the long-awaited review of LASPO has been pushed back to 2019.

Labour has already vowed to bring back legal aid for all housing cases, and more recently for all benefit appeals, too. We urge Theresa May’s government to follow suit. Changes are essential for a whole spate of the prime minister’s recent housing and homelessness policies to work.

The last few years have seen some positive steps in housing legislation and policy, but legal aid has been left behind. The LASPO review is a genuine opportunity to assess what legal support is needed to make this legislation as effective as possible to ensure that people at the sharpest end of the housing crisis can exercise their new rights. Without access to legal aid, these new rights could, essentially, be meaningless for many people.

Make Fitness for Human Habitation work

The Homes (Fitness for Human Habitation Bill) 2017-19 is a huge win for renters’ rights. The bill revives a defunct clause in the Landlord and Tenant Act 1985, which means that both social and private landlords have a greater responsibility to keep their rented homes in good condition. But renters now need legal aid to enforce these new rights.

Under LASPO, people can still receive legal aid if the conditions in their property are so poor that they pose a serious risk of harm to the health or safety of the household. However, how do you measure serious risk of harm? Every day, our advisers help people who are living in terrible conditions. It might not be deemed to be a ‘serious risk of harm’, but it’s certainly not suitable for a child studying for exams or trying to play. For example, the new fitness standard includes poor ventilation, which can lead to damp and condensation problems. If that damp is ruining all their belongings, but has not (yet) given them a chronic respiratory condition, they wouldn’t be able to receive legal aid to force their landlord to undertake the works.

Reduce homelessness under the Homelessness Reduction Act

The Homelessness Reduction Act 2017 is the biggest change to homelessness legislation in fifteen years. The act puts an onus on local authorities to intervene much earlier when someone is at risk of homelessness. The idea is that the person, and the local authority, have more time to prevent them from actually becoming homeless.

As our services staff know all too well, there is rarely a simple reason for someone being at risk of losing their home. As well as ‘no-fault’ evictions, benefit problems, rent increases and mental and physical ill health can all lead to a someone being at risk of losing their home. Complex problems often need expert intervention, which is why access to legal aid is essential if the government wants to reduce homelessness.

We know that the benefits system is imperfect; 71% of decisions about whether to award a disabled person Personal Independence Payments, or how much to award, were then overturned at tribunal stage. Clearly, early legal advice for benefit issues could prevent people accruing arrears- not to mention personal and financial hardship.

Often, people whose homes are at risk have been unable to get the advice they need to stop their benefit problems escalating. They must be at risk of homelessness before they can receive any legal advice, which means that a small problem with your housing benefit can mean that you might lose your home. If people had access to legal aid to resolve their benefits issues at the outset, their risk of homelessness could be entirely prevented. It is impossible to see how any government will end homelessness without restoring access to justice for early advice, to stop a small problem turning into a full-blown crisis.

Social housing green paper

Theresa May introduced the social housing green paper by stating her commitment to social housing tenants: ‘to empower them by giving them greater control over their lives and homes’.

The green paper focuses on giving renters a means of redress when things go wrong with their homes, and ensuring that any complaints process is transparent and easy to navigate. This is a welcome step towards ensuring people can access and use their rights.

However, to speak about redress without speaking about legal aid and legal advice is to disregard an essential tool in people accessing their rights. Even the best regulation process will need navigating, and while social landlords will have access to legal advice and experienced staff, inevitably, renters will need support to do so. Pre-LASPO, renters were able to receive legal aid for advice and written advocacy. Should this resource be reintroduced, May’s desire to give people control over their lives could become a reality.

Legal aid is essential to ensuring that those at the sharp end of the housing crisis have access to justice. Meaningful legal advice at an early stage is necessary to ensure the government achieves its aims, and it would improve the quality of life of people simply trying to maintain their homes. We’ll be watching for positive recognition of this fact in the government’s review.