Page 136 - Solving Housing Disputes

12. We have concerns about the creation of a two-track (and, at least potentially,
two-tier) justice system, split between such very different types of
jurisdiction. There is a real risk that housing law will become de-
professionalised and will fall behind other areas, perceived as a form of
relationship management rather than a distinct area of jurisprudence.
Moreover, it ignores the extensive cross-over between housing law and other
areas of law, from contracts to discrimination to public law. We do not
consider that siphoning this field off into a different system is appropriate.

13. Funding: we do not intend to suggest that we believe the current system to be
perfect. It is clearly not, and we agree that there are serious problems,
including access to justice, delay, and housing advice deserts. Our view,
however, is that these problems arise almost entirely from the under-
resourcing of the court system and legal aid as well as the shortage of social
housing and the well-publicised problems with the benefits system. The HDS
will inherit these problems, not fix them, and it will do so within a context of
significantly fewer protections and safeguards for vulnerable parties.

14. Restoring and extending the availability, scope and hourly rates of legal aid
(and indeed non-legal advice provision) – such that housing specialists could
refer clients to e.g. welfare benefits, mental health, community care and/or
family law specialists - would provide an alternative, less drastic way for a
comprehensive approach to be taken to housing disputes. We are
disappointed that, with limited exception, there seemed to be no attempt
seriously to engage with such possibilities by the Working Party, which
appeared to start from the assumption that “legal aid is not coming back”.
The potential risks and benefits of the HDS must be measured against the
risks and benefits of reinstating and/or improving existing and/or previously
existing provision.

Objections in principle to the HDS
15. Equality of arms: we recognise, and deplore, the fact that many people are
excluded from legal aid, whether because their means are above the
(extremely low) threshold, or because they live in a legal advice desert, or for
whatever reason. The position of such people is extremely difficult and we
would support measures to ameliorate it. But the way to achieve this is to
increase the availability of public funding, not to undermine the position of

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