Published: 13 Aug 2021 by Ruth Ehrlich

Cuts to legal aid are leaving renters unable to enforce their rights. Ensuring people can access early legal advice benefits landlords and tenants alike

There’s a strong case for fundamental changes to the civil legal aid system, the Justice Committee has found in its recent report, The Future of Legal Aid.

At Shelter, we’ve seen the devastating impact that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) has had on people living in terrible housing situations or facing homelessness. As a result, some parts of the country are ‘advice deserts’, in which people have no access to free legal advice.

Even people who earn a good salary struggle to pay for any legal representation. Cuts to legal aid leave renters unable to enforce their rights. As a charity, we rely on legal aid to help us help people to defend their homes.

The Justice Committee joins the chorus of voices calling for change, so that everyone can enforce their rights, defend their homes, and have access to justice. As the Committee states, legal aid should be regarded as a public service which benefits all of society. If you lose your job or suffer a severe injury, and are then unfairly refused the benefits you’re entitled to, you should be able to get help to challenge that decision before it reaches the point where you could become homeless.

This latest report echoes our calls for a reformed legal aid system that delivers for those who need to defend their homes. We have three top priorities for restoring legal aid to its former glory: bringing back funding for social welfare cases, changing the Legal Aid Agency’s culture of refusal, and ensuring the Ministry of Justice keeps its promises to deliver change.  

Bring back funding for social welfare cases

In 2012, the government decimated legal aid for social welfare cases through LASPO. Many housing problems, and almost all debt and benefit problems, were removed from scope. This meant people could only get legal advice when they had reached breaking point. The idea was to reduce the legal aid bill, while ensuring that the most vulnerable members of society received support. The Ministry of Justice admits it was only partially successful in that mission.

The stats are clear: in the decade from 2009/10 to 2019/20, the number of social welfare cases opened decreased by a staggering 93%. This has created a crisis-driven approach to legal aid, so that people can only get help when it’s often too late, or when their cases will inevitably end up in court. Yet it is often necessary to look behind the immediate housing issue and address the underlying problems that have created it.

Ensuring people can access early legal advice benefits landlords and tenants alike.

A lack of legal advice at an early stage for something as simple as a benefit problem can lead to a costly, time-consuming court case, and in some cases even homelessness. Any savings made on legal aid are outweighed by the unquantifiable costs on other parts of the government – like temporary accommodation and homelessness services.

At Shelter, we want people to avoid having to go to court. This is going to be only more important once the upcoming Renters’ Reform Bill arrives. Ensuring people can access early legal advice benefits landlords and tenants alike.

The government has expressed its desire to improve court processes through the Renters’ Reform Bill, but this won’t be possible as long as renters are denied access to timely legal advice. The Justice Committee agrees that investment in early advice for housing, benefit and debt cases could stop minor problems becoming full-blown catastrophes – thereby making courts work more effectively.

Culture of refusal

We were pleased to see the Justice Committee agree with our recommendation that the Legal Aid Agency (LAA) should take a more ‘flexible and proactive approach to legal aid cases’. The report highlights the need for the LAA to trust legal aid providers, including organisations like Shelter, who have long track records of correct decision making and high-quality housing casework.

Our legal team have been restricted in their ability to help people who need to fight for their rights because LAA decision-makers take too long to make a decision , apply an unnecessary level of bureaucratic scrutiny to our cases or even sometimes reject people for inadequate reasons. These delaying tactics force lawyers to choose between working ‘at risk’, where they might not be paid, or turning people away.

Overdue promises

The government is currently carrying out two reviews, one about the sustainability of civil legal aid and the other about the means test for legal aid. The committee notes a ’strong consensus‘ that the means test should be regularly uprated and that it should be simpler and should be set at an objectively defined poverty line.

However, the Ministry of Justice’s own 2019 review of LASPO acknowledged the fundamental shortcomings of the legislation: that it failed to ensure that legal aid is available to society’s most vulnerable, and that cost savings from reductions in legal aid may have put pressure on the public purse elsewhere. While attention has understandably been elsewhere due to the Coronavirus pandemic, the committee highlights its frustration at the lack of progress made in reforming legal aid.

The report notes that the evidence submitted to the committee is much the same as the evidence submitted to their last inquiry in 2015, and highlights issues raised in the government’s own review.

Clearly, we’re not the only ones waiting for the swift action to ensure that people can access legal advice when they need it. By making legal aid fit for purpose, we could help people stay in healthy, affordable homes, and reduce the stress and burden of court action for everyone involved.

We hope the Ministry of Justice heeds the committee’s calls to take urgent action.