A Cautionary Note to Legal Aid Practitioners under a Housing Contract: Possession Cases

For a matter to be within scope for Legal Aid, provision for it must be made under Schedule 1 of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (http://www.legislation.gov.uk/ukpga/2012/10/schedule/1). In respect of housing, and specifically in respect of the loss of home criteria, Paragraph 33(1) lays down as in scope:

Civil legal services provided to an individual in relation to—

(a)court orders for sale or possession of the individual’s home, or

(b)the eviction from the individual’s home of the individual or others.

Paragraph 33(2) lays down:

Civil legal services provided to an individual in relation to a bankruptcy order against the individual under Part 9 of the Insolvency Act 1986 where—

(a)the individual’s estate includes the individual’s home, and

(b)the petition for the bankruptcy order is or was presented by a person other than the individual,

including services provided in relation to a statutory demand under that Part of that Act.

It seems clear – if somebody faces the loss of their home due to eviction, or a repossession by a bank, or a court order for sale, or a bankruptcy order, these matters fall within scope for Legal Aid – and so they do. However, it is not necessarily true that a housing lawyer can provide Legal Aid services for these issues under their Legal Aid retainer. Although the issues are all about housing, and clients as well as housing lawyers new to Legal Aid will feel confident that they have the right contract for the job, that is not necessarily the case.

The Legal Aid Agency’s Category Definitions 2018 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738528/2018_Standard_Civil_Contract_Category_Definitions__August_2018_.pdf deals with the housing contract at paragraph 37. The bread and butter of our possession work – evictions – is of course included within the contract, and so are orders for possession of owned homes, although the biggest group in this category – mortgage repossessions – are specifically excluded. Court orders for possession of an individual’s home arising out of failure to make payment due under a mortgage fall under paragraph 27(b) of the Category Definitions, which describes a debt contract, not a housing contract. Also of interest is that any order for sale – not possession – also falls under the debt contract at paragraph 27(a) and not the housing contract, as do bankruptcy orders which threaten loss of home under paragraph 27(c). If you are a lawyer at a firm that has both a housing and a debt contract and you are personally qualified to practise both areas of law, you should ensure that such cases are opened under the debt contract, not the housing contract. If your firm does not have a debt contract, you must refer such matters on.

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