This post isn’t going to attempt to discuss all facets of this subject, but only one very specific issue. I hope to write further posts about some of the other facets that are legally engaging, but I shall leave that for another evening.
I have been running a case recently that has led me to investigate domestic abuse, loss of home, the law, and the Legal Aid Agency’s Standard Civil Contract. All Legal Aid solicitors operate under this contract, and the standard terms can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738513/2018_Standard_Civil_Contract_Standard_Terms__August_2018_.pdf
The contract governs standards, types of work, payment, supervision, and so on, and a solicitors’ firm in breach of these terms can have their licence to offer Legal Aid services revoked. It is very important that lawyers operate within the rules.
The case in question involves a secure joint tenancy and my client who is being rehoused away from that tenancy because of domestic abuse. The problem is that since the Localism Act 2011 councils have tended to offer flexible tenancies which don’t have the substantive security of tenure of older style tenancies. This is not a stand-alone case, and victims of domestic abuse can often find themselves losing out on security of tenure because they need to be rehoused.
The Secure Tenancies (Victims of Domestic Abuse) Act 2018 received Royal Assent on 10th May 2018. Section 1 amends the 1985 Housing Act by creating a duty to grant an old-style tenancy if the applicant needs a new tenancy after fleeing an old-style tenancy on account of domestic abuse. Unfortunately, Section 2 establishes that Section 1 will only come into force on such day as the Secretary of State may by regulations appoint. No such regulations have been laid down and perhaps we may blame this on the amount of parliamentary and Government time being taken up by Brexit.
There is another provision of law that may help in these circumstances. Under Section 53 of the Family Law Act 1996 it is possible under certain circumstances for the Family Court or the High Court to order that a tenancy be transferred from one name to another, or a joint tenancy to be vested in a sole name, as part of divorce or separation proceedings. The rules surrounding this are partly set out in Schedule VII of the Act and partly in an array of case law. So, our victim of domestic abuse may be able to argue forcefully that she be assigned the tenancy. There are complicating factors which I will not delve into in this post, but this is a powerful piece of statute, although it would not help the victim’s security of tenure should she need to be moved to another property. A judge may also be reluctant to rely on Section 53 if the victim is being rehoused anyway and if the result of such a ruling would be homelessness for the other party, which it almost certainly would in many cases (a single man – particularly one who has committed domestic abuse – is unlikely to be found to be in priority need for rehousing by the council).
When a person has a problem with their housing and their tenancy, such as the domestic abuse victim in the example above, they are likely to contact a housing lawyer. This makes sense, and a housing lawyer should be able to assist somebody with issues surrounding their tenancy. A housing lawyer may not currently be able to assist, however. When the relevant regulations are brought in to activate Section 1 of the Secure Tenancies (Victims of Domestic Abuse) Act 2018 then there will be no problem for a housing lawyer to help under the Standard Civil Contract, as the 2018 Act can simply be interpreted as a satellite piece of legislation to help lawyers deal with homelessness and rehousing – an area that is certainly within scope and certainly within specification for a housing law contract. The difficulty is that currently, the Section 53 alternative does not fall within a housing lawyer’s Legal Aid retainer.
It is important that both practitioners of Legal Aid and legally-aided clients understand the rules of the Standard Civil Contract because these form the basis of what a particular lawyer or firm can do under Legal Aid. When a client comes to a Legal Aid firm, not only must the case they present be within scope, not only must the client themselves be financially eligible, but the firm they approach must also have a contract with the Legal Aid Agency that permits them to deal with that particular area of law. In addition to the Standard Terms, there is the 2018 Standard Civil Contract Specification, which can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/738514/2018_Standard_Civil_Specification__General_Provisions___August_2018_.pdf
Paragraph 2.29 states that:
All Categories of Work are exclusive under this Contract. You must have Schedule Authorisation in a Category to undertake work in that Category unless it is Miscellaneous Work.
In other words, a law firm will have contracts with the Legal Aid Agency to carry out work in certain fields of law, and one contract does not cover all types of law. Certain types of case are “miscellaneous”, but Section 53 of the Family Law Act 1996 is clearly defined as falling under a family contract. The categories are defined in 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), and, setting out the family law category, paragraph 34 includes within that category:
34. Legal Help and all proceedings in relation to matters arising out of a family relationship where the client has been, or is at risk of being, a victim domestic violence (as described by paragraph 12 of Part 1 of Schedule 1 of Part 1 to the Act), including matters under the following enactments:
… (m) section 53 of, and Schedule 7 to, the Family Law Act 1996; …
“The Act” referred to is the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 and is the legislation that sets out the scope of Legal Aid today. All matters that arise from Paragraph 12 of Part 1 of Schedule 1 should be classed as falling under a family law contract, and not a housing contract (unless the matter can also be described as a housing matter within the scope of a housing contract). Currently, should a client come to you with a case similar to that described above, and you are operating under a housing law contract, there are few options left to you than to refer the matter to one of your family law contract colleagues.
This is hardly an ideal state of affairs, and I can only hope that the regulations are brought in as quickly as possible. This will enable lawyers under housing contracts to get involved in this type of matter, and will mean that victims of domestic abuse who come to housing lawyers with concerns over their impending loss of security of tenure are not turned away at the door.