Page 61 - Solving Housing Disputes

valuable asset, repossession and the prospect of homelessness. Those facing the
prospect of repossession are required to access advice through the Civil Legal
Aid telephone gateway under the “debt” 149 category, where they receive legal
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help over the phone or online, as opposed to legal aid under the housing
151
category. Tenant lawyers we spoke to and judges on our Working Party told
us that many respondents who face mortgage repossession cases have a tendency
to put their head in the sand, and for that reason, the pre-action requirements for
lenders to negotiate with borrowers can be ineffective. Access to “legal help”
only, when facing the prospect of eviction, denies the borrower the prospect of
stronger advocacy on their behalf at a time when they are most vulnerable. The
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financial eligibility requirements for civil legal aid are strict, and those facing
mortgage repossession otherwise with little by way of assets ought to be able to
access legal aid in times of need. We recommend that the legal aid
categorisation be changed so that mortgage possession claims sit in both
“debt” and “housing” so that respondents facing repossession can get both
early legal advice and representation should it be needed from a wide range
of providers.

3.13 Costs implications can also act as a fetter on access to justice and the viability of
the legal aid sector. Chapter 26 of the Jackson Report related to housing claims
and considered the issue that arises when landlords settle with no order as to
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costs. Sir Rupert considered the prospect that in certain circumstances,
landlords could exploit a conflict of interest between tenant and solicitor:

149 Legal Aid Agency, Category definitions 2018’, available at https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/738528/2018_Standard_Civil_Contract_Cate
gory_Definitions__August_2018_.pdf

150 The requirement to go through the CLA gateway was introduced by LASPO, see Patel and Mottram,
‘Civil Legal Aid mandatory gateway: Overarching research summary’ (Ministry of Justice, 2014) p. 9
available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_da
ta/file/384307/cla-gateway-research-summary.pdf

151 Those facing mortgage repossession can also gain on the day access to the Housing Possession Court
Duty Scheme at court https://www.gov.uk/repossession/help-with-legal-costs

152 The legal aid eligibility criteria exclude the first £100,000 of equity and only allows £100,000 in
mortgage debt. If the capital in the property is more than £8,000, a person is ineligible, the Civil Legal
Aid (Financial Resources and Payment for Services) Regulations 2013.

153 Lord Justice Jackson, ‘Review of Civil Litigation Costs: Final Report’, December 2009 available at
https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-
140110.pdf

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