Page 137 - Solving Housing Disputes

people who do currently have the benefit of legal aid. The answer to some
people being without legal representation is not to deprive others of it.

16. What the HDS proposal fails to recognise is that in almost every case there is
a fundamental imbalance of power between the parties in housing disputes.
The tenant or homeless person will almost by definition be in a worse
position. They are more likely to be poorer, more vulnerable, have more at
stake, and be less able to represent themselves. For example, where a landlord
is trying to evict a tenant: the landlord is likely to be more financially secure
than the tenant, even if just because in most cases they will own a property,
and the tenant will not; the landlord generally has less at stake than the tenant,
even though the case may well be financially very important to them, because
the tenant is facing the loss of their home, which the landlord is not; and the
landlord often (although, of course, not always) has an easier case to bring
than the tenant. Depending on the case, the landlord just has to show, for
example, that the correct notice was served or that the tenant is in rent arrears.
The tenant must show that, for example, the landlord has committed public
law errors in bringing possession, or that to evict him or her would be
unlawful disability discrimination under the Equality Act 2010, or that a
possession order would be a breach of his or her rights under Article 8 ECHR.
Similarly, where a homeless person is challenging the decision of a local
housing authority under Part 7 of the Housing Act 1996, again the local
authority is in the stronger position. The homeless person not only has far
more at stake than the local authority but also has, unlike the authority,
virtually no resources.

17. It is only by providing legal advice and assistance to the tenant, homeless
person, or other occupier of housing that fairness can be achieved. To remove
that representation is to create serious injustice.

18. It is not the case that this unfairness can be mitigated by an “informal” and
“inquisitorial” process. We represent clients who have problems with
substance abuse, who have mental health difficulties, who lack capacity, and
who lead chaotic lives. Advising, taking instructions, gathering evidence, and
representing them in court takes many hours of painstaking work. It involves
trawling through plastic bags full of documents; repeatedly rebooking
appointments which are missed; and working to establish trust and build a
relationship. We do not believe that this will be achieved through an

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