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Fixed costs: Housing specialists gather evidence on legal aid consequences

By Monidipa Fouzder >>

(23 February 2022)

A housing body has embarked on a data-gathering drive to highlight the impact that a new fixed recoverable costs regime will have on the already-fragile legal aid sector.

The Ministry of Justice is pressing ahead with plans to extend fixed recoverable costs to all civil cases up to the value of £25,000 despite acknowledging concerns that housing lawyers could stop doing legal aid work if they are no longer able to cross-subsidise their work through the recovery of higher costs. The regime, which is expected to be introduced this autumn, will apply to England and Wales (housing law is devolved in Wales, but justice is not).

Among those to raise concerns is the Housing Law Practitioners Association, which is looking to gather hard data to highlight the potential consequences of fixed recoverable costs being extended to housing cases.

The association has written to 30 legal aid providers, asking them to provide details of 10 cases that would fall under fixed recoverable costs, to show the difference between what was recovered and how much would be recovered under the new regime. The data will be collected by an external auditor. The auditor’s report will be the central focus of submissions to ministers to persuade them to rethink their plans.

HLPA co-chairs Marina Sergides and Simon Mullings said: ‘We are concerned that, despite the evidence that is staring them in the face post-LASPO, decision-makers just don’t understand the extent to which social welfare advice exists because each part of the legal advice ecosystem supports all the other parts. Take away the ability of organisations to be properly and fully remunerated when they bring successful cases against landlords who have breached their legal obligations by those at-fault landlords themselves, then there is real danger that the whole sector collapses including the early advice part which the government says it recognises as being crucial. We intend to put yet further evidence before ministers so that it cannot be said they were not aware of the problem.’

Sergides and Mullings said the housing legal aid sector faced several challenges, including the long-standing effects of the Legal Aid, Sentencing and Punishment of Offenders Act, diminishing legal aid rates of pay and ‘money-wasting schemes’ such as the housing possession mediation pilot. However, fixed recoverable costs ‘stands as the foremost existential threat to the provision of quality legal advice, assistance and representation for tenants and borrowers’.

The association says the ministry’s consultation on remodelling the emergency legal aid scheme for tenants facing eviction, which closed last month, is effectively meaningless if fixed recoverable costs are extended to housing cases.

A Ministry of Justice spokesperson said: ‘Our reforms will ensure legal costs remain fair and proportionate while maintaining access to justice and we are carefully considering their impact, with a view to implementing them later this year.’

(Courtesy: The Law Society Gazette)